CASE OF MENCHINSKAYA v. RUSSIA
Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Sverre Erik Jebens
6. The applicant was born in 1949 and lives in Norilsk in the Krasnoyarsk Region of the Russian Federation. 7. In August 1998 the applicant, formerly an engineer in a public company, was made redundant. On 3 September 1998 she was registered in the Norilsk Employment Centre. 8. As the unemployment allowances were paid to the applicant after a substantial delay and, as she believed, their calculation was not correct, in March 2000 she sued the Norilsk Employment Centre for the allowance arrears, adjusted for inflation, and interest thereon. 9. On 25 September 2000 the Norilsk Town Court of the Krasnoyarsk Region allowed the applicant's claims in part. It awarded her 677.35 Russian roubles (RUR) for arrears and RUR 4,568.53 for the indexation of the arrears to take account of inflation. Basing its award on Article 395 of the Civil Code of the Russian Federation the court also granted the applicant RUR 8,102.50 as interest on belated payments. 10. On 2 and 25 October 2000 the applicant lodged an appeal, arguing that the claims rejected by the first-instance court should have been granted. 11. On 9 October 2000 the Norilsk Employment Centre lodged an appeal. It claimed that labour legislation did not provide for an interest on unemployment allowances and therefore requested that the judgment in this part be quashed. 12. On 12 October 2000 the Norilsk Town Prosecutor filed an appeal (protest) against the judgment, exercising his power under Article 282 of the RSFSR Code of Civil Procedure. He submitted that the first-instance court had erroneously applied provisions of civil law to labour law relations and therefore unlawfully granted interest on belated payments in the applicant's favour. In his view, no interest was payable in respect of belated unemployment allowances, thus he requested the Court of Appeal to quash the judgment in this part. The Prosecutor also supported the part of the judgment which rejected the remainder of the applicant's claims. 13. A copy of the prosecutor's protest was served on the applicant on 18 October 2000, and she submitted her objections on 25 October 2000. 14. Having examined the appeals and the prosecutor's protest and having heard the judge-rapporteur and the prosecutor, on 29 November 2000 the Krasnoyarsk Regional Court upheld the arguments made by the Employment Centre and the prosecutor. Finding that the Civil Code was not applicable in the sphere of unemployment benefits, it quashed the first-instance court's judgment in the part granting the applicant RUR 8,102.50 as interest on belated payments. 15. The applicant's attempts to institute supervisory review proceedings proved to be unsuccessful. 16. The Civil Code of the Russian Federation provides that for the use of monetary assets belonging to another person, as a result of their unlawful withholding, or the failure to pay them back ... [statutory] interest should be paid .... The amount of that interest is defined as the refinancing rate [of the Central Bank of Russia] ... applicable in the place of residence of the creditor ... on the day of the execution of the monetary obligation (Article 395). 17. The RSFSR Code of Civil Procedure (in force at the material time) reads as follows: “A prosecutor may bring to a court a claim for the protection of rights and lawfully protected interests of other persons or enter the proceedings at any stage, if it is required for the protection of State or public interests or rights and lawfully protected interests of citizens... The prosecutor who participates in the proceedings may study the case materials, bring challenges, produce evidence, take part in the examination of evidence, lodge applications, state his opinion on issues arising in the course of the proceedings and on the merits of the case as a whole, as well as perform other procedural actions provided for by law...” “Judgments of all courts in the RSFSR may be appealed against to the court of cassation by the parties and other persons who took part in the litigation. A prosecutor or his or her deputy lodges an appeal against an unlawful or unjustified judicial decision, irrespective of whether he or she took part in the case...” 18. The Prosecutor's Offices Act (Федеральный закон "О прокуратуре Российской Федерации"), no. 2202-I of 17 November 1992, as in force at the material time, provides: “... 3. In accordance with the procedural legislation of the Russian Federation, prosecutors shall participate in the hearing of cases by courts of law and commercial courts (hereinafter referred to as the “courts”) and shall challenge any court decisions, sentences and rulings which are contrary to the law...” “1. The prosecutor shall take part in court hearings in the cases provided for 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 enter the case at any stage of the proceedings, if the protection of civil rights and lawful interests of society or the state so requires...” “1. Prosecutors or their deputies, within the scope of their powers, shall lodge cassation or private appeals or appeals in exercise of supervisory power with higher courts, and appeals or applications for reviews or appeals in exercise of supervisory power against an unlawful or unfounded court decision, sentence or ruling with commercial courts. Prosecutor's assistants and prosecutors of directorates or divisions may lodge appeals only in cases in the hearing of which they themselves have participated...” 19. 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...” 20. 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] 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”.