Communicated on 13 September 2016
THIRD SECTION
Application no. 49660/11
Dmitriy Vladislavovich SHMYREV against Russia
and 2 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, employees of banking institutions, were dismissed. They challenged their dismissals in courts.
1. Application no. 49660/11 Shmyrev v. Russia
5. The applicant held the post of a director of the credit department of Commercial Bank Svenska Handelsbanken CJSC (ЗАО Коммерческий Банк «Свенска Хандельсбанкен»).
6. On 11 January 2010 the applicant’s post was reduced.
7. On 9 February 2010 the applicant sued his former employer for reinstatement at work, payment of wages for the period of forced absence and moral harm compensation.
8. On 19 May 2010 the Basmanniy District Court of Moscow (Басманный районный суд г. Москвы) heard the public prosecutor who found the applicant’s claims to be reasonable, the defendant’s representatives and the applicant’s representative and granted the lodged claims.
9. The bank appealed and on 19 August 2010 the Moscow City Court (Московский городской суд) heard the public prosecutor who argued that the first-instance judgment should have been quashed, the defendant’s representatives and the applicant’s representative and quashed the judgment. The case was remitted for a fresh examination.
10. In the course of the new set of proceedings, on 29 October 2010 the District Court heard two representatives of the defendant and three representatives of the applicant and dismissed the applicant’s claims.
11. The applicant appealed and on 10 February 2011 the City Court heard the public prosecutor who argued that the appeal should have been dismissed, the defendant’s representative and two representatives of the applicant and upheld the first-instance judgment.
2. Application no. 58958/13 Mirumyan v. Russia
12. The applicant held the posts of a Director of the Saratov branch of LLC Company BKS (ООО “Компания БКС”) and of the Saratov representative office of OJSC BKS Bank (ОАО «БКС Банк»).
13. On 25 June 2012 he was dismissed on grounds of redundancy.
14. On 1 October 2012 the applicant filed an action for reinstatement at work.
15. On 29 October and 9 November 2012 the applicant unsuccessfully motioned for the prosecutor’s recusal.
16. On 9 November 2012 the Kirov District Court of Saratov (Кировский районный суд г. Саратова) heard the public prosecutor, who argued that the applicant’s claims and motions should have been dismissed, and the defendant’s representative and dismissed the lodged claims.
17. The applicant appealed challenging, among other things, the bias on the part of the public prosecutor and unfairness of the proceedings.
18. On 14 February 2012 the applicant motioned for the prosecutor’s recusal.
19. On 14 February 2013 the Saratov Regional Court (Саратовский областной суд) heard the public prosecutor, who argued that the applicant’s claims and motions should have been dismissed, the representative of the defendants, the applicant and dismissed the appeal.
20. On 16 April 2013 the Regional Court refused the applicant’s cassation appeal.
21. On 9 July 2013 the Supreme Court of the Russian Federation refused the applicant’s second cassation appeal.
3. Application no. 19326/14 Moiseyev v. Russia
22. The applicant was an employee of OTP Bank OJSC (ОАО «ОТП Банк». By the internal order of 14 March 2013 the applicant was dismissed due to reduction of his post.
23. On 3 April 2013 he brought proceedings for reinstatement at work.
24. On 10 July 2013 the Golovinskiy District Court of Moscow (Головинский районный суд г. Москвы) heard the public prosecutor, who argued that the applicant’s claims should have been dismissed, two representatives of the defendant, the applicant and his representative and dismissed the lodged claims.
25. On 31 July 2013 the applicant appealed and on 12 September 2013 the City Court heard the public prosecutor, who argued that the first‑instance judgment should have been upheld, two representatives of the defendant, the applicant and his representative and upheld the first-instance judgment.
26. On 27 December 2013 the applicant lodged a cassation appeal.
27. On 10 January 2014 the applicant complained to the Prosecutor‑General that participation of the public prosecutor in the proceedings was unlawful. He also demanded a recommendation for cassation review of the decisions of the first and appeal instances.
28. On 10 February 2014 the City Court refused the applicant’s cassation appeal.
B. Relevant domestic law
29. 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.”
30. 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 ...”
31. 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.”
32. 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
33. 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 ...”
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.”
35. 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;”
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 to the parties
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 prosecutors’ participation in the relevant proceedings? If no, 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
Applicant name
date of birth
place of residence
Final judgment
49660/11
05/08/2011
Dmitriy Vladislavovich SHMYREV
30/01/1966
Moscow
Moscow City Court
10 February 2011
58958/13
12/08/2013
Ararat Azatovich MIRUMYAN
13/04/1952
Saratov
Supreme Court of the Russian Federation
9 July 2013
19326/14
27/02/2014
Oleg Aleksandrovich MOISEYEV
01/08/1967
Moscow
Moscow City Court
10 February 2014
Full & Egal Universal Law Academy