CEDH · CASELAW;COMMUNICATEDCASES;ENG — 3 avril 2017

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A.     The circumstances of the cases 2.     The application numbers, the dates of lodging the applications, the applicants’ names and their personal details are set out in the Appendix. 3.     The facts of the cases, as submitted by the applicants, may be summarised as follows. 4.     The applicants, who had served in various national law-enforcement agencies and had been employed by various legal entities, were dismissed. They challenged their dismissals in courts. 1.     Application no. 6400/12 Zaripova v. Russia 5.     The applicant held a post in the military commission of the Samara Region. 6.     On 31 March 2011 the applicant was dismissed. 7.     The applicant brought an action against her former employer, seeking reinstatement, payment of wages for the period of her enforced absence and compensation for non-pecuniary damage. 8.     On 20 July 2011 the Promyshlenniy District Court of Samara ( Промышленный районный суд г. Самара ) heard the applicant, two representatives of the defendant, and the public prosecutor (who argued that the applicant’s claims were unsubstantiated and should therefore be dismissed); it then dismissed those claims. 9.     The applicant appealed and on 30 August 2011 the Samara Regional Court ( Самарский областной суд ) heard the applicant, two representatives of the defendant, and the public prosecutor (who argued that the first ‑ instance judgment should be upheld). The appellate court then upheld the first-instance judgment. In the course of the hearing the applicant objected to the participation of the public prosecutor, claiming that the proceedings were unfair and infringed the equality of arms principle. 2.     Application no. 39702/12 Lyashkov v. Russia 10.     The applicant held the position of deputy prosecutor at the Moscow Region Prosecutor’s Office. 11.     On 5 March 2011 the applicant was discharged from his post. 12.     On 15 March 2011 the applicant, together with another dismissed official, brought an action against the Prosecutor’s Office, seeking, inter alia , his reinstatement, payment of his wages (calculated as an average) for the period of his enforced absence, and compensation for non-pecuniary damage. 13.     On 28 July 2011 the Meshchanskiy District Court of Moscow ( Мещанский районный суд г. Москвы ) heard the applicant, the defendant’s representative, and the public prosecutor (who argued that the action should be dismissed), and then dismissed the action. 14.     On 3 August 2011 the applicant lodged a cassation appeal, complaining, inter alia , about the participation of the public prosecutor in the proceedings. 15.     On 6 December 2011 the Moscow City Court ( Московский городской суд ) heard the applicant, the defendant’s representative, and the public prosecutor (who argued that the lower court’s judgment should be upheld), and then upheld the judgment. 3.     Application no. 67451/12 Berlim v. Russia 16.     The applicant served in the armed forces. 17.     On 14 October 2011 the applicant was discharged because he had attained the maximum age limit for military service. 18.     The applicant brought an action against the relevant military authorities, challenging the dismissal. 19.     On 11 January 2012 the Military Court of the Novorossiysk Garrison ( Новороссийский гарнизонный военный суд ) heard the applicant and his representative, the defendants and their representatives, and the military prosecutor. The military prosecutor argued that the applicant’s claims should be granted. The action was upheld in part. 20.     One of the defendants appealed and on 4 April 2012 the Military Court of the North Caucasus Command ( Северо-Кавказский окружной военный суд ) heard the defendant’s two representatives and the military prosecutor. The military prosecutor argued that the first-instance judgment should be quashed. The judgment was overturned. The appellate court delivered a new decision in the case and dismissed the applicant’s action in full. 4.     Application no. 72828/12 Rostatova v. Russia 21.     The applicant was an employee of an electrical generation company, Rosenergoatom Concern JSC ( ОАО «Концерн Росэнергоатом» ). 22.     On 6 June 2011 the applicant was dismissed. 23.     On 17 August 2011 the applicant brought an action against her former employer, inter alia , seeking acknowledgement of the unlawfulness of her dismissal, recovery of the wages for the period of her enforced absence and compensation for non-pecuniary damage. 24.     On 6 February 2012 the Volgodonsk District Court of the Rostov Region ( Волгодонский районный суд Ростовской области ) heard the applicant and her representative, the defendant’s representative, and the public prosecutor (who alleged that the applicant had not complied with the statutory time-limit for bringing the action in question), and dismissed the applicant’s action. 25.     On 2 March 2012 the applicant appealed; on 14 May 2012 the Rostov Regional Court ( Ростовский областной суд ) heard the parties to the proceedings and the public prosecutor, and then upheld the first-instance judgment. 5.     Application no. 78883/12 Umrikhin v. Russia 26.     The applicant served in the armed forces. 27.     On 30 September 2011 the applicant was discharged due to the expiration of his military service contract. 28.     On 23 November 2011 the applicant was removed from the personnel list of the military investigative department of the Rostov Garrison without being provided additional and principal paid leave. 29.     On 20 February 2012 the applicant brought an action in the Military Court of the Novocherkassk Garrison ( Новочерскасский гарнизонный военный суд ), contesting his removal. 30.     On 24 February 2012 the Military Court of the Novocherkassk Garrison heard the applicant and the defendant’s representative, and then dismissed the action because of the applicant’s failure to comply with the three-month statutory time-limit for bringing the action in question. 31.     The applicant appealed, and on 23 May 2012 the Military Court of the North Caucasus Command ( Северо-Кавказский окружной военный суд ) heard the applicant, the defendant’s representative, and the military prosecutor (who argued that the lower court’s judgment should be quashed). The appeal court overturned the first-instance judgment and delivered a new decision in the case by which it dismissed the applicant’s claims. 6.     Application no. 5522/13 Aleksandrova v. Russia 32.     The applicant was an employee of an oil company, Lukoil ‑ Uralnefteprodukt LLC ( ООО «Лукойл-Уралнефтепродукт »). 33.     On 20 October 2011 she was dismissed on the grounds that her position had ceased to exist. 34.     The applicant brought an action against her former employer, seeking, inter alia , her reinstatement at work and payment of her wages in respect of the period of her enforced absence. 35.     On 21 February 2012 the Leninskiy District Court of Magnitogorsk ( Ленинский районный суд г. Магнитогорска ) heard the applicant’s representative, two representatives of the defendant and the public prosecutor (who argued that the claims should be allowed in part); it then allowed the applicant’s claims in part. 36.     The defendant and the public prosecutor appealed and on 31   May   2012 the Chelyabinsk Regional Court ( Челябинский областной суд ) heard two representatives of the defendant, the applicant’s representative, and the public prosecutor, who argued that the first-instance judgment should be overturned; the appellate court then overturned the judgment and delivered a new decision by which it dismissed the applicant’s claims in full. 7.     Application no. 7556/13 Kireyeva v. Russia 37.     The applicant worked as the headmistress of a public school in the Smolensk Region. 38.     On 28 September 2011 the applicant was dismissed on the grounds that her position had ceased to exist. 39.     On 30 January 2012 the applicant brought an action, seeking, inter alia , reinstatement, payment of wages for the period of her enforced absence and compensation for non-pecuniary damage. 40.     On 14 June 2012 the Yartsevo Town Court of the Smolensk Region ( Ярцевский городской суд Смоленской области ) heard the applicant and her two representatives, the defendant’s representative and the public prosecutor (who argued that the applicant’s claims should be dismissed); it then dismissed the applicant’s action. 41.     The applicant appealed and on 18 September 2012 the Smolensk Regional Court ( Смоленский областной суд ) heard the applicant and her two representatives, the defendant’s representative and the public prosecutor (who argued that the first-instance judgment should be upheld); the appellate court then upheld the judgment. B.     Relevant domestic law 42.     The Code of Civil Procedure of the Russian Federation (hereinafter “the CCvP”), as in force at the material time, read as follows: Article 45. Participation of a prosecutor in the proceedings “3.     A prosecutor shall join the proceedings and give an opinion in respect of cases concerning eviction, reinstatement at work, [or] compensation for harm caused to life or health, and other cases stipulated by the present Code and other federal laws, for the purpose of exercising his powers. The non-appearance of a prosecutor [who has been] notified of the time and place of the hearing shall not constitute an impediment to the hearing of [such a] case.” 43.     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 the amendment to the CCvP, for the purpose of the effective implementation by the prosecution authorities of the task of protecting in civil proceedings 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: ... 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 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 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. ... 4.8.     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 CCvP and other federal laws, in particular: on eviction, reinstatement at work, compensation for harm caused to life or health ...”. 44.     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 “1     ... In the exercise of the assigned functions the prosecutor shall: ... take measures to prevent and suppress infringements of the rights and freedoms of a person and citizen, hold responsible those in breach of law, and [provide] compensation for inflicted damage;”. Article 35. Prosecutor’s participation in court hearings “1.     The prosecutor shall take part in court hearings where 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 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 a prosecutor participating in court hearings are defined by the procedural legislation of the Russian Federation.” 45.     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 the adoption and entry into force of the CCvP” reads as follows: “For prosecutors to exercise their powers it is suggested [that they bear in] mind the following: 1.     The authority to participate in civil proceedings in the courts of general jurisdiction shall be exercised by a prosecutor in three forms: ... (b)     by joining the proceedings in order to give opinions in cases on eviction, reinstatement at work, compensation for harm caused to life or health and in other cases ... for the purpose of exercising the powers conferred; ... If a prosecutor joins proceedings to give an opinion in the case [in question], as set forth in section 3 of Article 45 of the CCvP, the presiding judge – after examining all the evidence – shall call on him to speak, along with the representative of the State authority or municipal authority [in question] giving an opinion in the case under Article   47 of [CCvP]. In the judicial pleadings a prosecutor in the indicated category of cases pleads first   (art. 190 of the 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, even though he was supposed to participate under Article 45 of the CCvP, then he is – pursuant to Articles 34 and 35 of the 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.” COMPLAINT The applicants complain that the participation of a prosecutor in the civil proceedings was contrary to Article   6   §   1 of the Convention, inter alia , because it undermined 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 the involvement of a prosecutor in these proceedings?   2.     Did the applicants exhaust available and effective domestic remedies in respect of the prosecutors’ 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 that any such individual situation might have on the equality of arms in the proceedings? APPENDIX No. Application no. Lodged on Applicant’s name, date of birth place of residence Final judgment   6400/12 01/12/2011 Yelena Vasilyevna ZARIPOVA 16/08/1960 Rostov-na-Donu   Samara Regional Court, 30 August 2011   39702/12 04/06/2012 Sergey Vasilyevich LYASHKOV 18/06/1985 Kashira, Moscow Region   Moscow City Court, 6 December 2011   67451/12 19/09/2012 Aleksandr Vladimirovich BERLIM 08/06/1962 Gvardeyskoye, Simferopol District, Crimea   Military Court of the North Caucasus Command, 4 April 2012   72828/12 13/10/2012 Nina Sergeyevna ROSTATOVA 12/12/1979 Volgodonsk   Rostov Regional Court, 14 May 2012     78883/12 14/11/2012 Denis Aleksandrovich UMRIKHIN 20/04/1979 Stavropol   Military Court of the North Caucasus Command, 23 May 2012   5522/13 29/11/2012 Viktoriya Afanasyevna ALEKSANDROVA 12/02/1962 Magnitogorsk   Chelyabinsk Regional Court, 31 May 2012   7556/13 25/12/2012 Alla Sergeyevna KIREYEVA 28/10/1981 Yartsevo, Smolensk Region   Smolensk Regional Court, 18 September 2012