THIRD SECTION
DECISION
Application no. 438/09
Lyubov Nikolayevna MILITSA and Akulina Yakovlevna MILITSA
against Russia
and 24 other applications
(see list appended)
The European Court of Human Rights (Third Section), sitting on 14 September 2021 as a Committee composed of:
Peeter Roosma, President,
Dmitry Dedov,
Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
2. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, then by Mr M. Galperin, the Representatives of the Russian Federation to the European Court of Human Rights, and lately by their successor in that office, Mr. M. Vinogradov.The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. Each of the applicants was a claimant or defendant in civil proceedings. Besides the parties, prosecutors participated in those proceedings with the aim of defending public interests or interests of vulnerable persons.Relevant domestic law and practiceCode of Civil Procedure
5. The Code of Civil Procedure of the Russian Federation (“the CCvP”) reads as follows:
Article 45. Participation of a prosecutor in the proceedings
“1. A prosecutor shall be entitled to lodge an application with the court for the protection of rights, freedoms and lawful interests of citizens, of an indefinite group of persons or of the interests of the Russian Federation, subjects of the Russian Federation and municipal entities ...
2. A prosecutor, who has lodged an application, shall enjoy all the procedural rights and bear all the procedural obligations of the plaintiff, except for the right to conclude a friendly settlement agreement and the obligation to pay the court fees ...
3. A prosecutor shall join the proceedings and give an opinion in cases concerning eviction, reinstatement at work, [or] compensation for harm caused to life or health, and in other cases provided for by the present Code and other federal laws, for the purpose of exercising his [or her] powers. Non-appearance of a prosecutor [who has been] notified of the time and place of the hearing shall not constitute an impediment to the hearing of [such a] case.”
Article 131. Form and content of a statement of claim
“3. In the statement of claim lodged by a prosecutor for the protection of the interests of the Russian Federation, subjects of the Russian Federation and municipal entities or for the protection of the rights, freedoms and lawful interests of an indefinite group of persons, there should be indicated what exactly their interests are, which right has been violated, and there should also be a reference to the law or other legal instrument, providing for [such] means of protection of these interests. In case of a prosecutor’s application for the protection of the lawful interests of a citizen, the statement of claim shall contain either the grounds of impossibility for the citizen to bring an action on his [or her] own or indication that the citizen has applied to the prosecutor.”
6. Article 189 of the CCvP provides that once the prosecutor has given an opinion, the parties shall be afforded an opportunity to submit additional explanations.The Prosecutor’s Offices Act (Federal Law no. 2202-1 of 17 January 1992)
7. The relevant provisions of the Prosecutor’s Offices Act were previously reproduced in the case Batsanina v. Russia, no. 3932/02, § 12, 26 May 2009.Clarifications by the Constitutional Court
8. The Ruling of the Constitutional Court of the Russian Federation no. 831-O-O of 18 December 2007 (point 2.1) clarifies that the prosecutor’s opinion cannot predetermine the position of the court on a particular case which shall be determined on the basis of all the circumstances of the case, as well as impartial, comprehensive and complete examination of the arguments and evidence submitted by the parties. In civil cases the prosecutor acts in the public interest for the protection of socially vulnerable people. The prosecutor’s participation in such cases does not prevent the parties from fully exercising their rights; it does not upset the balance between the parties, nor does it infringe the principle of adversarial procedure.Relevant Council of Europe documents
9. The provisions of the relevant Council of Europe documents were previously reproduced in the case Batsanina, cited above, §§ 15-17.
COMPLAINT
10. The applicants complained under Article 6 § 1 of the Convention that a fair balance between the parties had not been respected in view of the prosecutor’s participation in civil proceedings. The relevant part of Article 6 reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
THE LAW
11. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly.
12. The Government submitted that prosecutors had participated in the proceedings in accordance with the law and their participation had been justified by the public interest. The prosecutors had not acted in favour of any party to the proceedings, their opinion had not been binding on the court and their involvement had not had any momentous impact on the outcome of the proceedings. Thus, the Government maintained that the participation of the prosecutors in the proceedings had not violated the principle of equality of arms, nor in any other way had it undermined the fairness of the proceedings.
13. The applicants maintained their complaints. They submitted that the mere presence of a prosecutor at the civil proceedings, was it active or passive, should be deemed a violation of Article 6 § 1 of the Convention. In their opinion prosecutors had each time supported the adverse party, thus creating the feeling of inequality. They further alleged that the prosecutors’ participation had not been justified and had aimed at influencing the court.
14. The Court reiterates that under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present its case under conditions that do not place it at a substantial disadvantage vis-à-vis its opponent (see Korolev v. Russia (no. 2), no. 5447/03, § 29, 1 April 2010, and Yvon v. France, no. 44962/98, § 31, ECHR 2003‑V).
15. In a number of cases the Court has already examined the role of the prosecutors or comparable officers in the proceedings outside the sphere of criminal law. In those cases the Court found a violation of Article 6 § 1 of the Convention on account of the participation of similar officers in the deliberations of the court or their presence at the court’s deliberations (see Martinie v. France [GC], no. 58675/00, § 53, ECHR 2006‑VI, and further references therein), and on account of non-communication of the prosecutor’s submissions to the applicant and impossibility for the applicant to reply to them in absence of oral hearings (see Göç v. Turkey [GC], no. 36590/97, §§ 55-6, ECHR 2002‑V).
16. When considering the applications lodged against Russia raising the same issue, the Court has not excluded 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 unable to protect their interests themselves, or where numerous citizens are affected by the alleged wrongdoing, or where identifiable State assets or interests need to be protected (see Batsanina, cited above, § 27). Further, the Court has considered that the mere fact that a prosecutor participated in civil proceedings cannot as such give rise to an issue under Article 6 (see, mutatis mutandis, Chernysheva v. Russia (dec.), no. 77062/01, 10 June 2004) and that the fact that a similar point of view is defended before a court by several parties does not necessarily place the opposing party in a position of “substantial disadvantage” when presenting his or her case. It should be ascertained whether, in view of the prosecutor’s participation in the proceedings, the “fair balance” between the parties was respected (see Korolev (no. 2), § 30, and Batsanina, § 25, both cited above).
17. Turning to the circumstances of the present cases, the Court points out that none of the above-mentioned procedural defects (see paragraph 15 above) could be identified in the proceedings at issue.
18. The prosecutor’s participation in all the cases was provided for by law. When taking part in civil proceedings, the prosecutor did not have any special powers, such as the right to participate in the court’s deliberations or to attend them, the prosecutor was afforded the same procedural rights as other parties to the proceedings. When initiating or joining the proceedings, the prosecutor acted in the public interest, in particular, for the protection of State interests and assets or the rights of vulnerable persons. The prosecutor was an independent participant, who did not support any party to the proceedings, but implemented the main function of the prosecutor’s office to oversee and ensure the respect for the rule of law. The prosecutor’s opinion was not binding on the court and the parties had the opportunity to make oral or written submissions in reply to the prosecutor’s opinion. The applicants actively participated in the proceedings, in person or through their representatives.
19. In the absence of consistent explanations from the applicants how the prosecutor’s participation in their cases had affected the fairness of the proceedings, there is no reason to believe that the prosecutor’s involvement in civil cases was meant or had the effect of unduly influencing the court or preventing the applicants from bringing an effective defence (see Batsanina, cited above, § 27). 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 cases.
20. It follows that the complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 7 October 2021.
{signature_p_2}
Olga Chernishova Peeter Roosma
Deputy Registrar President
Appendix
No.
Application no.
Case name
Lodged on
Applicant
Place of Residence
Nationality
Represented by
Final judgment (court, date), subject‑matter of the dispute
1.
438/09
Militsa v. Russia
10/11/2008
Lyubov Nikolayevna MILITSA
Moscow
Russian
Akulina Yakovlevna MILITSA
Tver
Russian
Supreme Court of the Republic of Mari El
26/06/2008 (first set of proceedings)
14/10/2008 (second set of proceedings)
eviction proceedings
2.
74779/10
Dolganov v. Russia
15/12/2010
Viktor Gennadyevich DOLGANOV
Kamensk-Shakhtinskiy
Russian
Irina Sergeyevna IVANKOVA
Rostov Regional Court
28/10/2010 (first set of proceedings)
Supreme Court
29/08/2013
compensation proceedings
3.
24448/11
Litvin v. Russia
08/04/2011
Yuriy Mikhaylovich LITVIN
Yekaterinburg
Russian
Court of Yamal-Nenets Autonomous Region
18/10/2010
labour dispute
4.
28121/11
Bondarenko v. Russia
18/04/2011
Nikolay Ivanovich BONDARENKO
Bataysk
Russian
Aleksandr Sergeyevich GOLIKOV
Rostov Regional Court
17/03/2011
compensation proceedings
5.
35437/11
Chumachenko v. Russia
14/05/2011
Valeriy Alekseyevich CHUMACHENKO
Magadan
Russian
Lyudmila Ivanovna CHUMACHENKO
Magadan
Russian
Anna Vladimirovna BOYCHENYUK
Magadan Regional Court
07/09/2012
eviction proceedings
6.
36212/11
Naymanova v. Russia
10/08/2011
Roza Ismailovna NAYMANOVA
Cherkessk
Russian
Asldar Mardan-Ogly MARDANOV
Supreme Court of the Karachay-Cherkess Republic
09/03/2011
compensation proceedings
7.
18212/12
Davydenko v. Russia
13/03/2012
Aleksandr Yuryevich DAVYDENKO
Irkutsk
Russian
Aleksey Anatolyevich NAVALNYY
Supreme Court
05/04/2012
labour dispute
8.
39702/12
Lyashkov v. Russia
04/06/2012
Sergey Vasilyevich LYASHKOV
Kashira
Russian
Dmitriy Vasilyevich LYASHKOV
Supreme Court
22/03/2012
labour dispute
9.
48883/12
Kireyev v. Russia
09/07/2012
Aleksandr Nikolayevich KIREYEV
Yartsevo
Russian
Supreme Court
06/03/2013
labour dispute
10.
67451/12
Berlim v. Russia
19/09/2012
Aleksandr Vladimirovich BERLIM
Gvardeyskoye
Russian
Supreme Court
02/11/2012
labour dispute
11.
72828/12
Rostatova v. Russia
13/10/2012
Nina Sergeyevna ROSTATOVA
Volgodonsk
Russian
Aleksandra Aleksandrovna BOGUN
Supreme Court
26/09/2012
labour dispute
12.
76186/12
Shuparskiy v. Russia
20/11/2012
Sergey Profilyevich SHUPARSKIY
Angarsk
Russian
Inna Anatolyevna MARCHENKO
Irkutsk Regional Court
06/11/2012
compensation proceedings
13.
78883/12
Umrikhin v. Russia
14/11/2012
Denis Aleksandrovich UMRIKHIN
Stavropol
Russian
Nikolay Nikolayevich UKRAINTSEV
North Caucasus District Military Court
23/05/2012
labour dispute
14.
5522/13
Aleksandrova v. Russia
29/11/2012
Viktoriya Afanasyevna ALEKSANDROVA
Magnitogorsk
Russian
Irina Dmitriyevna KOMISSAROVA (not lawyer)
Chelyabinsk Regional Court
31/05/2012
labour dispute
15.
15468/13
Kashcheyev v. Russia
17/01/2013
Gennadiy Vladimirovich KASHCHEYEV
Bratsk
Russian
Supreme Court
18/07/2012
labour dispute
16.
58958/13
Mirumyan v. Russia
12/08/2013
Ararat Azatovich MIRUMYAN
Saratov
Russian
Supreme Court
09/07/2013
labour dispute
17.
59927/13
Chichadeyev v. Russia
10/05/2012
Vladimir Veniaminovich CHICHADEYEV
Perm
Russian
Perm Regional Court
12/01/2015 (first set of proceedings)
17/07/2013 (second set of proceedings)
Supreme Court
01/06/2012 (third set of proceedings)
compensation proceedings
18.
69079/13
Deyneko v. Russia
25/10/2013
Andrey Vladimirovich DEYNEKO
Slavyanka
Russian
Anton Nikolayevich TITOV
Tikhookeansky Navy Military Court
14/02/2014
labour dispute
19.
11776/14
Aliyev v. Russia
30/01/2014
Fakhri Alish Ogly ALIYEV
St Petersburg
Russian
Fedor Samuilovich LEMESHEV
St Petersburg City Court
12/12/2013
eviction proceedings
20.
19326/14
Moiseyev v. Russia
27/02/2014
Oleg Aleksandrovich MOISEYEV
Sedan
Russian
Yelena Sergeyevna MOISEYEVA (not a lawyer)
Supreme Court
27/03/2014
labour dispute
21.
21695/14
Kulnev v. Russia
03/03/2014
Yevgeniy Viktorovich KULNEV
Khokholskiy
Russian
Tumas Arsenovich MISAKYAN
Supreme Court
19/12/2013
labour dispute
22.
73740/14
Burmistrova v. Russia
14/11/2014
Viktoriya Viktorovna BURMISTROVA
Tambov
Russian
Supreme Court
23/05/2014
labour dispute
23.
77185/14
Fedyayev v. Russia
04/12/2014
Sergey Konstantinovich FEDYAYEV
Irkutsk
Russian
Roman Vladimirovich KRAVTSOV
Irkutsk Regional Court
02/10/2014
civil dispute (proceedings to invalidate the agreement)
24.
35725/16
Yefanov v. Russia
14/06/2016
Yuriy Mikhaylovich YEFANOV
Belovo
Russian
Oleg Aleksandrovich SEREDA
Supreme Court
15/12/2015
compensation proceedings
25.
49027/16
Klimenko v. Russia
11/08/2016
Valeriy Petrovich KLIMENKO
Severskaya
Russian
Sergey Ivanovich BOGDANOV
Supreme Court
22/03/2016
compensation proceedings
Full & Egal Universal Law Academy