CEDH · CASELAW;COMMUNICATEDCASES;ENG — 8 février 2017

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border:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s299B0C57 { margin-top:0pt; margin-left:0.45pt; margin-bottom:0pt; text-indent:-0.45pt; text-align:center; font-size:8pt } .s87F2FADE { width:19.98%; border:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .sB217F55D { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:8pt } .s38E2430F { width:22%; border:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s263EC0C8 { width:30.24%; border-top:0.75pt solid #808080; border-left:0.75pt solid #808080; border-bottom:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .sA0B2759 { margin-top:0pt; margin-left:0.45pt; margin-bottom:0pt; text-indent:-0.45pt; text-align:justify; font-size:8pt } .sD94C2AD8 { width:3.76%; border-top:0.75pt solid #808080; border-right:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .sB69D5516 { width:13%; border-top:0.75pt solid #808080; border-right:0.75pt solid #808080; border-left:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .sACDDF828 { width:11.02%; border-top:0.75pt solid #808080; border-right:0.75pt solid #808080; border-left:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s794BB640 { width:19.98%; border-top:0.75pt solid #808080; border-right:0.75pt solid #808080; border-left:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s2C390BB8 { width:22%; border-top:0.75pt solid #808080; border-right:0.75pt solid #808080; border-left:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s3DD9DBBC { width:30.24%; border-top:0.75pt solid #808080; border-left:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   Communicated on 8 February 2017   THIRD SECTION Application no. 438/09 and no. 38304/13 Lyubov Nikolayevna MILITSA and Akulina Yakovlevna MILITSA against Russia and Dzhamal Gasan Ogly SHALYYEV against Russia (see list appended) A.     The circumstances of the cases 1.     The applicants are Russian nationals. The application numbers, the dates of lodging the applications, their names and personal details are set out in the Appendix. 2.     The applicants were provided with residential premises by their employers. They were deprived of the rights to them in the first case and limited in their use in the second. 1.     Application no. 438/09 Militsa v. Russia 3.     The first applicant is the mother and the second applicant is the wife of Mr Militsa, who is a State official. Mr Militsa and the second applicant are the parents of Ms S. The family lived in Moscow in the service apartment provided to Mr Militsa. 4.     On 2 October 2003 Mr Militsa was appointed to the Ministry of Internal Affairs of the Mariy El Republic. 5.     In 2003-2004 the parents of the second applicant registered in the above service apartment, whereas the applicants, Mr Militsa, and Ms   S. cancelled their registration. 6.     On 26 January 2005 Mr Militsa, as the first in the list of the officers in need of residential premises, was provided with a service apartment in Yoshkar ‑ Ola for a family of four. On 22 February 2005 he was granted a housing order to these premises. On 19   April 2005 Ms S. cancelled her registration in Yoshkar-Ola apartment and re-registered in Moscow. On 1   July 2005 the second applicant entered into an agreement with the Ministry of Internal Affairs of the Mariy El Republic on transfer of the Yoshkar ‑ Ola apartment into her ownership. The transaction was officially registered on 6   July 2005 and the second applicant was provided with the ownership certificate. 7.     The prosecutor of the Mariy El Republic, acting on behalf of the Federal Agency for the Federal Property Management of the Mariy El Republic, initiated the below sets of civil proceedings against inter alia the applicants. (a)     Proceedings I 8.     The prosecutor, acting on behalf of the Territorial Directorate of the Federal Agency for Federal Property Management of the Mariy El Republic, brought an action against the applicants, the local administration and the Ministry of Internal Affairs of the Mariy El Republic to annul the municipal act and the housing order by which Mr Militsa was provided with the premises. 9.     On 16   July   2007 the Yoshkar ‑ Ola Town Court of the Mariy El Republic ( Йошкар-Олинский городской суд Республики Марий Эл ) heard the public prosecutor, the representatives of the plaintiff and of the defendants including the applicants’ representative and granted the claims. 10.     The applicants appealed and on 6   September 2007 the Supreme Court of the Mariy El Republic (Верховный суд Республики Марий Эл) heard the public prosecutor, who argued that the first-instance judgment should be upheld, the claimant’s representative, the Ministry’s representative, the applicants and their representatives and quashed the lower court’s decision sending the case for a fresh examination. 11.     On 23   May 2008 the Town Court heard the public prosecutor, the representatives of the plaintiff and of the defendants including the applicants’ representative, Mr Militsa and ruled in favour of the plaintiff insofar as the invalidation of the housing order was concerned. 12.     The applicants lodged a cassation appeal arguing among other things that the public prosecutor had not had the powers to bring the proceedings. 13.     On 26   June 2008 the Supreme Court heard the public prosecutor, who argued that the first-instance judgment should be upheld, the plaintiff’s representative, the Ministry’s representative, the second applicant and the applicants’ representative, Mr Militsa and upheld the first-instance judgment. (b)     Proceedings II 14.     The prosecutor, acting on behalf of the local Federal Agency for Federal Property Management, sued inter alia the applicants as well as the Ministry of internal affairs of the Mariy El Republic for acknowledgement of invalidity of the privatization agreement, application of the consequences of the invalid transaction, eviction and deregistration. 15.     On 18   August 2008 the Town Court heard the public prosecutor, the plaintiff’s representative, the Ministry’s representative and the second   applicant and satisfied the lodged claims. The acquisition of the title to a service apartment was found to unlawful in view of the fact that the applicants continued to use previously provided service apartment and concealed it from the national authorities. The Town Court acknowledged invalidity of the privatization agreement of 1 July 2005 and ordered cancellation of its registration of 6 July 2005. 16.     On 3   September 2008 the applicants lodged a cassation appeal arguing, among other things, that the public prosecutor had no authority to bring the action. 17.     On 14   October 2008 the Supreme Court heard the public prosecutor, who argued that the first-instance judgment should be upheld, the representatives of the Federal Agency and of the defendants, including the applicants’ representative, the second applicant, Mr Militsa and upheld the first-instance judgment. 2.     Application no. 38304/13 Shalyyev v. Russia 18.     The applicant and his three children resided in and were registered at a room in the factory dormitory. In 2001 the applicant learnt that the title the room was partially transferred by the local authorities to Mr Z., who was registered therein together with his daughter. 19.     The applicant brought an action against the Smolensk Administration and Mr Z. with his daughter for protection of the rights and lawful interests of his children claiming inter alia invalidation of the housing order, issued to Mr Z., and of the registration of Mr Z. and his daughter. 20.     On 31   August 2012 the Zadneprovskiy District Court of Smolensk ( Заднепровский районный суд г. Смоленска ) heard the public prosecutor, who argued that the applicant’s claims should be dismissed, Mr   Z. and his representative, the applicant’s children and partially satisfied the lodged claims. 21.     Mr   Z. appealed and on 28   November 2012 the Smolensk Regional Court ( Смоленский областной суд ) heard the public prosecutor, who argued that the first-instance judgment should be quashed and a new one adopted by which the applicant’s claims be dismissed in full, Mr   Z. and his representative, the applicant and his two representatives and quashed the first-instance judgment. The appeal court adopted a new decision by which the applicant’s claims were dismissed in full. B.     Relevant domestic law 22.     The Code of Civil Procedure of the Russian Federation (“the   CCvP”), 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 ... 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 ... 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.” Article 131. Form and content of a statement of claim “3.     In the statement of claim, lodged by a prosecutor for the protection of the interests of the Russian Federation, subjects of the Russian Federation and municipal entities or for the protection of the rights, freedoms and lawful interests of an indefinite number of persons, there should be indicated what exactly their interests are, which right was violated, and there should also be a reference to the law or other normative legal act, providing for the methods of protection of these interests.” 23.     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 CCvP, 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 the protection of rights, freedoms and lawful interests of the persons, indicated in section   1 of Article 45 of the RF CCvP, of an indefinite number of persons, interests of the Russian Federation, subjects of the Russian Federation and municipal entities ... 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 CCvP 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 CCvP, 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. ... 4.3.     To take into consideration that the prosecutor who lodged the action has the right to change the grounds or subject of the action, the amount claimed and to waive the action. ... 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 CCvP and other federal laws, in particular: on eviction, reinstatement at work, compensation for harm caused to life or health ...” 24.     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 and administrative judicial proceedings, if the affected party cannot due to the health, age or other reasons assert in person the rights and freedoms in [court] or if the rights and freedoms of a significant number of citizens were infringed or if due to other circumstances the infringement acquired a special social implication, 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.” 25.     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 CCvP” 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: (a)     by application to the court with the statements, stipulated in section 1 of Article   45 of the RF CCvP, - in action proceedings (statement of claims) and in the cases, arising from public legal relationships as well as in the cases subject to examination in special proceedings; (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; ... Pursuant to section 1 of Article 45 of the Code a prosecutor is entitled to apply to the court with a statement for protection of the rights, freedoms and lawful interests of the citizens, an indefinite number of persons or interests of the Russian Federation, subjects of the Russian Federation, municipal entities. ... 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 CCvP, 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 CCvP]. In the judicial pleadings a prosecutor in the indicated category of cases pleads first (art. 190 of the RF CCvP). 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 CCvP, he is pursuant to Articles 34 and 35 of the RF CCvP 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 26.     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.” COMPLAINTS 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 prosecutor’s participation in the relevant proceedings? If not, 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 the 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 Represented by Final judgment   438/09 10/11/2008 Lyubov Nikolayevna MILITSA 09/09/1958 Moscow   Akulina Yakovlevna MILITSA 16/07/1924 Tver   Proceedings I: Supreme Court of the Mariy El Republic, 26 June 2008   Proceedings II: Supreme Court of the Mariy El Republic, 14 October 2008     38304/13 27/05/2013 Dzhamal Gasan Ogly SHALYYEV 25/07/1969 Smolensk   Sergey Anatolyevich PANCHENKO Smolensk Regional Court, 28 November 2012