CASE OF KOROLEV v. RUSSIA (No. 2)
Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - claim dismissed
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
4. The applicant was born in 1954 and lives in the town of Orenburg. 5. The applicant was in active military service between 1972 and 1998. In February 1998 while he was on leave he was refused a free plane ticket on account of the debt accrued by the Federal Ministry of Defence to the air carriers. The applicant purchased a ticket for himself expecting to be reimbursed by the employer later. 6. After his retirement from active service, the applicant took paid leave in September 1998. 7. Apparently, in March 1999 the military authority informed the applicant that he would not be reimbursed for the ticket he had bought in February 1998 because he was entitled to only one period of paid leave per year. 8. It appears that in May 2001 the applicant brought civil proceedings in the Leninskiy District Court of Yekaterinburg claiming compensation in respect of pecuniary and non-pecuniary damage caused by the above refusal. Apparently, the District Court dismissed his claim. 9. In June 2001 the applicant brought proceedings in the Military Court of the Yekaterinburg Garrison against two military authorities: the Urals-Tyumen regional department of the Federal Air Service and the financial department of the Privolzhsko-Uralskiy military command. He claimed annulment of a 1996 contract between the Ministry of Defence and an air company, as well as a compensation in respect of pecuniary damage (426 Russian roubles, RUB) and non-pecuniary damage in the amount of RUB 300,000 in relation to the refusal of the ticket in February 1998. 10. By a judgment of 15 March 2002 the Military Court of the Yekaterinburg Garrison dismissed the applicant's claims for failure to comply with the statutory time-limit (see paragraph 13 below). The court heard the applicant, the first defendant's representative and the second defendant's lawyer. 11. The applicant lodged an appeal before the Military Court of the Urals Command. The court heard the applicant, a representative of the Privolzhsko-Uralskiy military commander. A prosecutor was also present. At the end of the hearing, he made a statement, exercising a right conferred on him by the Civil Procedure Code 1964, in force at the material time (see paragraph 14 below). The applicant was not afforded an opportunity to comment on the above statement. On 25 April 2002 the Military Court of the Urals Command upheld the judgment on appeal. It considered that, as confirmed by the applicant, he had first learnt about the violation of his right on 27 February 1998; that his references to the contracts concluded by the State authorities had been irrelevant for his claim. 12. Under Articles 195 and 196 of the Civil Code, the general limitation period for claiming protection of a violated right amounted to three years. 13. Under Article 239-5 § 1 of the RSFSR Code of Civil Procedure a complaint against unlawful actions by a public official should be lodged with the competent court no later than three months from the date on which the person concerned became aware of the violation of his or her rights or freedoms. By a ruling of 14 February 2000 the Plenary Session of the Supreme Court of Russia held that if a military officer's complaint against unlawful actions of military authorities contained a claim for the redress in respect of the alleged violation of his or her right, the three-month time-limit should not apply (§ 12). 14. Both in first-instance and appeal proceedings, a party could challenge the prosecutor participating in the proceedings on account of his or her previous participation in the case in a different capacity, his next-of-kin status in relation to a party or other persons involved in the case, or if the prosecutor had an interest in the outcome of the case or if other circumstances indicated his partiality (Articles 18, 20 and 297 of the RSFSR Code of Civil Procedure). 15. After the oral pleading by the parties but before the court's deliberations, the prosecutor was allowed to give his conclusions as to the lawfulness and reasonableness of the court decision (Articles 303 and 304). The parties could not comment on the above conclusions. 16. 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...” 17. 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: “...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”. 18. 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...”