CASE OF BATSANINA v. RUSSIA
Remainder inadmissible;No violation of Art. 6-1;Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Alvina Gyulumyan;Anatoly Kovler;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
4. The applicant was born in 1957 and lives in the town of Gelendzhik, in the Krasnodar Region. 5. The applicant's husband was a staff member of the Oceanology Institute of the Russian Academy of Sciences, a State-owned institution. In 1977 he was placed on a waiting list to receive housing. In August 1998 he was on the top of the list. In order to obtain a larger flat from the Institute, it was agreed that the applicant would transfer title to her own flat to the Institute. On 4 December 1998 the applicant and the Institute signed an exchange agreement. The Institute subsequently discovered that the applicant had sold her old flat in March 1998. 6. On an unspecified date, having become aware of the above transactions, the Gelendzhik town prosecutor, acting on behalf of the Institute and the person who had been allocated the applicant's flat (a Mr M), brought proceedings against the applicant and her husband to have the exchange agreement invalidated and to evict the applicant's family from the flat granted to her husband. The applicant's husband brought a counter-claim seeking the acknowledgement of his right to the new flat received from the Institute. 7. On 9 March 2000 the Gelendzhik Town Court of the Krasnodar Region granted the public prosecutor's claim. On 25 April 2000 the Krasnodar Regional Court quashed the judgment and ordered a re-examination of the case by the first-instance court. 8. The first instance heard the prosecutor, the applicant, her husband and their counsel. The Oceanology Institute's and Mr M's representatives were also present and made submissions to the court. On 1 June 2001 the Town Court granted the public prosecutor's claim. On 18 June 2001 the Town Court dismissed the counter-claim in a separate judgment. The applicant appealed. On 16 August 2001 the Regional Court upheld the judgments of 1 and 18 June 2001. The prosecutor was present at the appeal hearing. There is no written proof that the applicant received any summons for the appeal hearing scheduled for 16 August 2001. 9. On 30 January 2003 the Supreme Court refused to initiate supervisory proceedings in respect of the above judgments. It rejected, inter alia, the applicant's complaint about non-notification of the appeal hearing, noting that the parties had been apprised of it. 10. In the meantime, on 4 February 2000 criminal proceedings were instituted against the applicant on suspicion of embezzlement in relation to the same facts. On 19 December 2000 the case was discontinued for lack of a corpus delicti. On 15 August 2006 the above decision was quashed and the preliminary investigation was resumed. Its outcome remains unclear. 11. The RSFSR Code of Civil Procedure (CCP) in force at the material time read 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...” 12. The Prosecutor's Offices Act (Federal Law no. 2202-I of 17 November 1992), as in force at the material time provided: “... 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...” 13. Article 106 of the RSFSR CCP provided that a summons was to be served on the parties and their representatives in such a way that they would have enough time to appear at the hearing and prepare their case. Where necessary, the parties could be summoned by a phone call or a telegram. Pursuant to Articles 108 and 109, court summonses were to be sent by mail or by courier and served on the person who was a party to the case. 14. According to Instruction no. 8 issued by the Judiciary Department of the Supreme Court of Russia on 29 January 1999, in force at the material time, there was no requirement for registering acknowledgment-of-receipt cards for summons; the cards were to be filed into the relevant case files (point 12). Under Instruction no. 171 issued on 29 December 1999, the storage period for case files in civil cases examined by a first-instance court on the merits varied from five to fifteen years depending on the nature of the case; certain case files had to be stored for an indefinite period of time; the storage period for case files in civil cases examined by a court of appeal amounted to three years; registers of incoming correspondence were to be kept for three years; copies of summons issued by regional courts were to be kept for five years. 15. 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...” 16. 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”. 17. 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...”