Communicated on 12 June 2014

FIRST SECTION

Application no. 35437/11 Valeriy Alekseyevich CHUMACHENKO and Lyudmila Ivanovna CHUMACHENKO against Russia lodged on 14 May 2011

STATEMENT OF FACTS

The applicants, Mrs Lyudmila Ivanovna Chumachenko and Mr Valeriy Alekseyevich Chumachenko , are Russian nationals, who were both born in 1955 and live in Magadan .

A. The circumstances of the case

The facts of the case, as submitted by the applicant s , may be summarised as follows.

On 24 June 1999 the first applicant borrowed from Mrs P. 200,000 Russian roubles (RUB) (approximately 8,800 euros (EUR)) with the promise to return them in three months. As a security for the transaction the second applicant mortgaged to Mrs P. their apartment in Magadan .

The first applicant never returned the money to Mrs P. On 1 July 2002 the Magadan Town Court ordered sale of the mortgaged apartment at a public auction with the proceeds payable to Mrs P.

Over the next nine years the applicants initiated multiple proceedings aimed at reconsideration of their contractual obligations and postponement of the enforcement proceedings.

After several public auctions did not take place in 2011 due to the lack of interest from potential buyers, Mrs P. agreed to accept the apartment instead of the monetary payment. On 6 October 2011 the property title to the apartment was transferred from the applicants to her.

In 2012 Mrs P. sued the applicants, who had been refusing to vacate the apartment, and asked the courts to order eviction.

On 27 April 2012 the Magadan Town Court ordered eviction of the applicants. A prosecutor took part in the hearings, gave his legal opinion on the case, and that opinion has been mentioned in the text of the judgment.

The applicants appealed against the judgment alleging inter alia unlawfulness of the prosecutor ’ s participation in the proceedings.

On 7 September 2012 the Magadan Regional Court dismissed their appeal. As regards participation of a prosecutor the court highlighted that it was prescribed by civil procedure legislation and that it did not violate any of the applicants ’ rights.

B. Relevant domestic law

The Code of Civil Procedure of the Russian Federation (CCP), which entered into force on 1 February 2003, in Article 45 section 3 imposes on a prosecutor an obligation to intervene in certain civil proceedings. It reads as follows:

Article 45. Participation of a prosecutor in the proceedings

“ ... 3. In order to exercise the powers entrusted to him a prosecutor shall intervene and state his opinion in cases concerning eviction, reinstatement at work, recovery of damages caused by harm to life or health, and in other cases prescribed by this Code or by the federal legislation...”

The Prosecutor ’ s Office Act (Federal Law no. 2202-I of 17 November 1992 ) , as in for ce 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 judicial proceedings in court s, commercial courts ... ”

Article 35. Prosecutor ’ s participation in judicial proceedings

“1. The prosecutor shall take part in judicial proceedings in cases prescribed 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 a case at any stage of the proceedings, if the protection of rights of citizens and lawful interests of society or the S tate so requires .

4. The powers of the prosecutor participating in consideration of a case by a court shall be determined by the procedural legislation of the Russian Federation... ”

C. R elevant C ouncil of E urope 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 ; ...”

1 . 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:

“ ... 5 7... 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 ) ...

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) ...

1 3. 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).

1 4. Prosecutors should not discriminate among persons when protecting their rights and should only intervene for well-gro unded reasons (principle of non ­ discrimination) . ”

COMPLAINT

The applicant s complain under Article 6 § 1 of the Convention that participation of a prosecutor in the eviction proceedings undermined a fair balance between the parties to these proceedings.

QUESTIONS TO THE PARTIES

1. Did the applicants exhaust the effective domestic remedies available to them? Did they need to lodge a further appeal against the judgment of the Magadan Regional Court of 7 September 2012?

2. Did the applicants have a fair hearing in the determination of their civil rights, in accordance with Article 6 § 1 of the Convention?

3. Was participation of a prosecutor in the civil proceedings justified by any significant public interest? ( see Batsanina v. Russia , no. 3932/02, § 27, 26 May 2009 ).

4. Did participation of a prosecutor in the civil proceedings undermine a fair balance between the parties?