CEDH · CASELAW;COMMUNICATEDCASES;ENG — 29 septembre 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 29 September 2016   THIRD SECTION Application no. 77185/14 Sergey Konstantinovich FEDYAYEV against Russia lodged on 4 December 2014 STATEMENT OF FACTS 1.     The applicant, Mr Sergey Konstantinovich Fedyayev, is a Russian national, who was born in 1963 and lives in Irkutsk. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     Ms Shevchenko owned a non-residential building and a plot of land in the Irkutsk Region. Her ownership rights were attested by the registration certificates. 4.     On 5 October 2004 Ms Shevchenko issued a power of attorney granting her son, Mr Shevchenko, a certain range of powers with regard to the specified property. On 11 October 2004 Ms Shevchenko revoked this power of attorney. 5.     On 15 and 28 October 2004 Mr Shevchenko, acting on the basis of that power of attorney, signed the sale and purchase agreements with the applicant for ½ share of the title to the building and the land plot. On 29   October 2004 the applicant’s purchases were registered and the respective certificates were issued. 6.     Ms Shevchenko requested a public prosecutor to initiate proceedings aimed at invalidation of the above transactions. 7.     On 28 November 2012 the prosecutor, acting on behalf of Ms   Shevchenko, brought proceedings against the applicant to have the sale and purchase transactions invalidated. 8.     On 12 December 2012 the prosecutor’s claims were granted by the Slyudyanka District Court of the Irkutsk Region ( Слюдянский районный суд Иркутской области ) in absence of the applicant. 9.     On 24 January 2014 the applicant demanded reversal of the judgment. The judgment was set aside by the appeal court. 10.     On 2 April 2014 the District Court heard the public prosecutor, two   representatives of the plaintiff, the applicant and his representative and granted the public prosecutor’s action. 11.     The applicant appealed, arguing inter alia that the public prosecutor had not had the legal authority to bring the proceedings on behalf of Ms   Shevchenko, that the reasons for doing so were formal and did not demonstrate that Ms Shevchenko had no possibility to initiate proceedings herself. The applicant also pointed out that Ms Shevchenko appeared at the court hearings in person accompanied by her two representatives. 12.     The appeal court heard the public prosecutor who argued that the appeal should have been dismissed, two representatives of the plaintiff, the applicant and a third party. On 20 June 2014 the Irkutsk Regional Court ( Иркутский областной суд ) upheld the first instance judgment and found insofar as relevant as follows: “... after her application to the public prosecutor of the Slyudyanka District for protection of the infringed right, the public prosecutor brought the present action to the court for protection of her rights.” 13.     The applicant lodged a cassation appeal challenging inter alia the prosecutor’s participation in the proceedings and putting forward arguments similar to those in his appeal complaint. 14.     On 2 October 2014 the Regional Court refused the applicant’s cassation appeal and found inter alia as follows: “The reference in the cassation appeal to the lack of authority on the part of the public prosecutor for bringing of an action on behalf of [Ms Shevchenko] is based on a different interpretation of the provisions of the procedural law and cannot be taken into account.” B.     Relevant domestic law 15.     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 “1.     A prosecutor shall be entitled to make an application to the court for the protection of rights, freedoms and lawful interests of citizens, of an indefinite number of persons or interests of the Russian Federation, subjects of the Russian Federation and municipal entities. An application for protection of rights, freedoms and lawful interests of a citizen may be lodged by a prosecutor only if the citizen cannot turn to the court independently for health, age, legal incapacity or other valid reasons ... 2.     A prosecutor, who lodged an application, enjoys all the procedural rights and bears all the procedural obligations of a plaintiff, except for the right to conclude a friendly settlement agreement and the obligation to pay the court fees ...” Article 131. Form and content of a statement of claim “3.     ... In case of a prosecutor’s application for protection of the lawful interests of a citizen, the statement of claim shall contain either the grounds of impossibility for the citizen to bring the action on his own or indication that the citizen applied to the prosecutor.” 16.     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: participating in consideration by the trial, appeal, cassation and supervisory review courts of the cases, initiated in the actions (applications) of the prosecutors for protection of rights, freedoms and lawful interests of the persons, indicated in section   1 of Article 45 of the RF CCP, of an indefinite number of persons ... joining the proceedings at any stage and giving opinions in the cases on eviction ... and 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. ... 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 ...” 17.     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 “4.     In case of infringement of the rights and freedoms of a person and a citizen that are subject to protection in civil judicial proceedings, if the affected party cannot due to the health, age or other reasons assert in person the rights and freedoms in [court] ... the prosecutor brings and maintains an action in favour of the affected party in the [court].” 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.” 18.     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: “Absence in the RF CCP of a list, mentioned in section 1 of Article 45 of the RF   CCP, of valid reasons and criteria of health condition, on account of which a citizen cannot turn to the court, does not relieve a prosecutor, when preparing a statement of claim (application) in such a case, from observance of the specified requirements of law and indication of the grounds due to which the citizen cannot apply to the court independently. Herewith there should be provided the evidence confirming impossibility of independent application with copies of the documents enclosed. It is for the court to assess the validity of the reasons for which the citizen cannot apply to court independently. From the meaning of Article 136 of the RF CCP it follows that the prosecutor’s failure to observe the specified requirements, when applying to court for protection of rights, freedoms and lawful interests of a citizen, entails deference of acceptance of the prosecutor’s application ...” C.     Relevant Council of Europe documents 19.     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.” COMPLAINT 20.     The applicant complains 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 applicant have a fair hearing in the determination of his 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.     What were the grounds in the domestic law and/or practice allowing for the prosecutor’s participation in the present set of proceedings?   3.     What were the reasons justifying the prosecutor’s participation in the proceedings?   4.     Did the domestic courts duly review the above reasons having regard to the individual situation of each party to the proceedings? Did they consider any impact it had on the equality of arms in the proceedings?