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FIRST
SECTION
CASE OF KOROLEV v. RUSSIA (no. 2)
(Application
no. 5447/03)
JUDGMENT
STRASBOURG
1
April 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Korolev v. Russia
(no. 2),
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Andre
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 11 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5447/03) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Vladimir Petrovich
Korolev (“the applicant”), on 23 October 2002.
- The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk, the then Representative of the Russian
Federation at the European Court of Human Rights.
- On
2 April 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and lives in the town of Orenburg.
- The
applicant was in active military service between 1972 and 1998. In
February 1998 while he was on leave he was refused a free plane
ticket on account of the debt accrued by the Federal Ministry of
Defence to the air carriers. The applicant purchased a ticket for
himself expecting to be reimbursed by the employer later.
- After
his retirement from active service, the applicant took paid leave in
September 1998.
- Apparently,
in March 1999 the military authority informed the applicant that he
would not be reimbursed for the ticket he had bought in February 1998
because he was entitled to only one period of paid leave per year.
- It
appears that in May 2001 the applicant brought civil proceedings in
the Leninskiy District Court of Yekaterinburg claiming compensation
in respect of pecuniary and non-pecuniary damage caused by the above
refusal. Apparently, the District Court dismissed his claim.
- In
June 2001 the applicant brought proceedings in the Military Court of
the Yekaterinburg Garrison against two military authorities: the
Urals-Tyumen regional department of the Federal Air Service and the
financial department of the Privolzhsko-Uralskiy military command. He
claimed annulment of a 1996 contract between the Ministry of Defence
and an air company, as well as a compensation in respect of pecuniary
damage (426 Russian roubles, RUB) and non-pecuniary damage in
the amount of RUB 300,000 in relation to the refusal of the ticket in
February 1998.
- By a judgment of 15 March 2002 the Military Court of
the Yekaterinburg Garrison dismissed the applicant's claims for
failure to comply with the statutory time-limit (see paragraph 13
below). The court heard the applicant, the first defendant's
representative and the second defendant's lawyer.
- The applicant lodged an appeal before the Military
Court of the Urals Command. The court heard the applicant, a
representative of the Privolzhsko-Uralskiy military commander. A
prosecutor was also present. At the end of the hearing, he made a
statement, exercising a right conferred on him by the Civil Procedure
Code 1964, in force at the material time (see paragraph 14 below).
The applicant was not afforded an opportunity to comment on the above
statement. On 25 April 2002 the Military Court of the Urals Command
upheld the judgment on appeal. It considered that, as confirmed by
the applicant, he had first learnt about the violation of his right
on 27 February 1998; that his references to the contracts
concluded by the State authorities had been irrelevant for his claim.
II. RELEVANT DOMESTIC LAW
A. Statutory time-limits and limitation periods
- Under
Articles 195 and 196 of the Civil Code, the general limitation period
for claiming protection of a violated right amounted to three years.
- Under
Article 239-5 § 1 of the RSFSR Code of Civil Procedure a
complaint against unlawful actions by a public official should be
lodged with the competent court no later than three months from the
date on which the person concerned became aware of the violation of
his or her rights or freedoms. By a ruling of 14 February 2000
the Plenary Session of the Supreme Court of Russia held that if a
military officer's complaint against unlawful actions of military
authorities contained a claim for the redress in respect of the
alleged violation of his or her right, the three-month time-limit
should not apply (§ 12).
B. Participation of public prosecutors in cases outside
the sphere of criminal law
- Both in first-instance and appeal proceedings, a party
could challenge the prosecutor participating in the proceedings on
account of his or her previous participation in the case in a
different capacity, his next-of-kin status in relation to a party or
other persons involved in the case, or if the prosecutor had an
interest in the outcome of the case or if other circumstances
indicated his partiality (Articles 18, 20 and 297 of the RSFSR Code
of Civil Procedure).
- After
the oral pleading by the parties but before the court's
deliberations, the prosecutor was allowed to give his conclusions as
to the lawfulness and reasonableness of the court decision (Articles
303 and 304). The parties could not comment on the above conclusions.
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
- 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...”
- 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:
“...56...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)...
14. 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).
15. Prosecutors should not
discriminate among persons when protecting their rights and should
only intervene for well-grounded reasons (principle of
non-discrimination)...
73. 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”.
- 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...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that there had been a violation of Article 6 §
1 of the Convention on account of the procedural inequality in the
appeal proceedings. He referred to the public prosecutor's
participation in the appeal proceedings, as well as the absence of an
opportunity to make comments to the prosecutor's final remarks at the
closure of the appeal hearing. The relevant part of Article 6 reads
as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Admissibility
- With
reference to the Court's judgment in the case of Vilho Eskelinen
and Others v. Finland ([GC], no. 63235/00, in fine, ECHR
2007 IV), the Government considered that the applicant's
complaint was incompatible ratione materiae.
- The
applicant made no comment.
- The
Court reiterates that for Article 6 § 1 in its “civil”
limb to be applicable, there must be a dispute over a “civil
right” which can be said, at least on arguable grounds, to be
recognised under domestic law, irrespective of whether it is also
protected under the Convention. The dispute must be genuine and
serious; it may relate not only to the actual existence of a right
but also to its scope and the manner of its exercise; and, finally,
the result of the proceedings must be directly decisive for the right
in question, mere tenuous connections or remote consequences not
being sufficient to bring Article 6 § 1 into play (see, among
others, Itslayev v. Russia, no. 34631/02, § 25, 9 October
2008). The character of the legislation which governs how the matter
is to be determined (civil, commercial, administrative law, and so
on) and that of the authority which is invested with jurisdiction in
the matter (ordinary court, administrative body, and so forth) are
therefore of little consequence (see Micallef v. Malta [GC],
no. 17056/06, § 74, ECHR 2009 ...).
- The
applicant's claims were not excluded as such from judicial
protection. He thus made use of this opportunity and introduced an
action against the State bodies. It is also noted that in addition to
contesting a contract between the Ministry of Defence and an air
company, the applicant lodged claims for compensation in respect of
pecuniary and non-pecuniary damage in relation to the refusal of a
free ticket in February 1998. Apparently, he based his claims on the
national legislation concerning leave arrangements for the military
personnel. The Court considers on the basis of the available
information that the claims for compensation could be qualified as
“civil” in the meaning of Article 6 § 1 of the
Convention. The Court also considers that the dispute was “serious
and genuine” (see, by contrast, Serov v. Russia, no.
75894/01, § 56, 26 June 2008). Indeed, the Government raised no
objections on that account.
- It
is further noted that the military court refused to examine the case
on account of the applicant's failure to comply with the statutory
time-limit for lodging it (see paragraphs 10 - 13 above). Neither the
domestic courts nor the Government indicated that the domestic system
barred the applicant's access to a court for reasons other than the
ordinary requirement of a time-limit. The time-limit issue, in
particular as regards the existence and validity of any eventual
excuse for a belated claim, was aired and discussed at a court
hearing. The appeal proceedings, which are at the heart of the
Convention complaint in the present application, concerned the same
matter.
- In
view of the above, and irrespective of the fact that the domestic
proceedings did not result in any final “determination”
of the civil rights and obligations, the Court considers that Article
6 is applicable (see Atanasova v. Bulgaria, no. 72001/01,
§§ 48-52, 2 October 2008; see, however, Neshev v.
Bulgaria (dec.), no. 40897/98, 13 March 2003).
- The
Court concludes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant maintained his complaint.
- The
Government submitted that the prosecutor's participation in the
appeal hearing had been lawful under the RSFSR Code of Civil
Procedure. While the prosecutor had not been a party to the
proceedings, his conclusions were intended “to express the
opinion of the federal authorities” and were not binding on the
court. In any event, the prosecutor made no statements on the merits
of the case and his participation was essentially passive and
confined merely to upholding the lower court's decision in favour of
the defendants. He did not take part in the court's deliberations.
Lastly, in the Government's view, it was open to the applicant to
challenge the prosecutor or the court (see paragraph 14 above).
2. The Court's assessment
(a) General principles
- The
Court reiterates that the principle of equality of arms is one
element of the broader concept of fair trial, within the meaning of
Article 6 § 1 of the Convention. It requires “a fair
balance between the parties”; each party must be given a
reasonable opportunity to present his case under conditions that do
not place him at a substantial disadvantage vis-à-vis
his opponent (see Yvon v. France, no. 44962/98,
§ 31, ECHR 2003-V; Nideröst-Huber v. Switzerland,
18 February 1997, § 23, Reports of Judgments and
Decisions 1997-I; and Kress v. France [GC], no. 39594/98,
§ 72, ECHR 2001-VI).
- The
Court considers that the fact that a similar point of view is
defended before a court by several parties does not necessarily place
the opposing party in a position of “substantial disadvantage”
when presenting his or her case. It should be ascertained
whether, in a given case, in view of the prosecutor's participation
in the proceedings, the “fair balance” that ought to
prevail between the parties was respected.
- The
Court reiterates that since a prosecutor or comparable officer, in
undertaking the status of a party to proceedings, becomes in effect
the ally or opponent of one of the parties, his participation is
capable of creating a feeling of inequality in respect of one of
those parties (see Kress, cited above, § 81, and F.W.
v. France, no. 61517/00, § 27, 31 March 2005). In
this context, the Court reiterates that while the independence and
impartiality of the prosecutor or similar officer may not be open to
criticism, the public's increased sensitivity to the fair
administration of justice justifies the growing importance attached
to appearances (see Borgers v. Belgium, 30 October 1991,
§ 24, Series A no. 214-B).
- Indeed,
the Court has previously considered that appearances may be of a
certain importance in court proceedings, for instance for assessing
compliance with the requirement of objective impartiality, or for the
sake of preserving the confidence which the courts in a democratic
society must inspire in the public (see Sara Lind Eggertsdóttir
v. Iceland, no. 31930/04, § 42, ECHR 2007 VIII).
The Court noted in that context that in making such an assessment the
focus should be on the legitimacy of the reason to fear that a
particular judge lacks impartiality and on whether this fear could be
held to be objectively justified (ibid). In the context of the
principle of equality of arms, in the case of Stoimenov v. “the
former Yugoslav Republic of Macedonia” (no. 17995/02,
§§ 40-42, 5 April 2007) the Court also referred to
“appearances” when concluding that an opinion submitted
by the Forensic Science Bureau, a State agency, was akin to
incriminating evidence used by the prosecution and that the refusal
of an alternative expert examination and the applicant's inability to
challenge the Bureau's report in the circumstances of that case had
resulted in a violation of the equality of arms (see also Shulepova
v. Russia, no. 34449/03, §§ 65-67, 11 December 2008).
- The
Court does not exclude the possibility that support by the
prosecutor's office for one of the parties may be justified in
certain circumstances, for instance for the protection of vulnerable
persons who are assumed to be unable to protect their interests
themselves, or where numerous citizens are affected by the wrongdoing
concerned, or where identifiable State assets or interests need to be
protected (compare Menchinskaya v. Russia, no. 42454/02, §§
37-40, 15 January 2009, and Batsanina v. Russia, no.
3932/02, § 27, 26 May 2009).
- Lastly,
the Court points out at the outset that its task is not to review the
relevant domestic law and practice in abstracto, but to
determine whether the manner in which they were applied to or
affected the applicant gave rise to a violation of Article 6 § 1
(see, among other authorities, Padovani v. Italy, 26 February
1993, § 24, Series A no. 257-B, and Hauschildt v. Denmark,
24 May 1989, § 45, Series A no. 154).
(b) Application of those principles in
the present case
- Turning
to the circumstances of the present case, the Court observes at the
outset that the applicant does not complain before the Court about
the domestic courts' refusal to examine his action. Instead, the
thrust of his complaint is on the public prosecutor's intervention at
the appellate stage of those proceedings.
- The
Court notes that the applicant's opponents in the proceedings in
question were State agencies. Their interests before national courts
were defended by their representatives, at least one of whom was a
lawyer. The prosecutor chose to support their position in the appeal
proceedings. It appears that in his final statement at the closure of
the hearing he upheld the first instance court's conclusions
concerning the application of the statutory time-limit in the case.
- In
the present case, the Court does not discern any particular reason
which would justify the prosecutor's participation in the appeal
hearing in an ordinary civil case. It does not transpire that the
prosecutor intended, for instance, to protect any identifiable State
assets or interests at stake (see, by contrast, Batsanina,
cited above, § 27). While it is uncontested that the
prosecutor confined his participation in the proceedings to a mere
statement of approval of the first-instance decision concerning the
application of the statutory time-limit, the Court sees no reason to
speculate on what effect such intervention may have had on the course
of the proceedings. However it finds that the mere repeating by the
prosecutor of the respondents' arguments on points of law, unless it
aimed at influencing the court, appeared meaningless (see
Menchinskaya, cited above, § 38). The foregoing
considerations have led the Court to conclude that the principle of
the equality of arms, requiring a fair balance between the parties,
was not respected in the present case.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATION OF THE CONVENTION
- Lastly,
the applicant complained under Article 6 § 1 of the Convention
about the allegedly excessive length of the proceedings.
In the light of all the material in its possession, and in so far as
the matter complained of is within its competence, the Court finds
that it does not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols. It follows
that this part of the application is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage and costs
- The
applicant claimed 3,000 euros (EUR) in respect of non-pecuniary
damage caused by the length of the proceedings in the military courts
and EUR 10 in respect of costs and expenses incurred in the domestic
proceedings and before the Court.
- The
Government contested the above claims.
- The
Court observes that the claim in respect of non-pecuniary damage only
concerns the inadmissible complaint (see paragraph 39 above) and does
not relate to Court's findings under Article 6 § 1 of the
Convention on the prosecutor's participation in the appeal
proceedings. Thus, the Court dismisses the claim. Regard being had to
the information in its possession, the Court grants the claim for
costs.
B. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the alleged
inequality of arms in the civil case admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 10 (ten
euros) in respect of costs and expenses, to be converted into Russian
roubles at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 1 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Andre Wampach Christos Rozakis
Deputy Registrar President
