PARTLY DISSENTING OPINION OF JUDGE GYULUMYAN

I find that I am unable to share the opinion of the majority that there has been no violation of Article 6 § 1 of the Convention on account of the alleged non-observance of the principle of equality of arms.

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 being given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-a-vis his opponent (see, among many other authorities, Yvon v. France , no. 44962/98, §31, ECHR 2003-V; and Kress v. France [GC], no. 39594/98, §72, ECHR 2001-VI ).

In the present case the prosecutor brought eviction proceedings against the applicant and her husband on behalf of the Oceanology Institute, a State-owned organisation, and a private individual, Mr M. The prosecutor subsequently participated in the first-instance and appeal hearings to protect the Oceanology Institute ’ s and Mr M. ’ s interests.

I agree that the participation of a prosecutor in civil proceedings may be justified in certain circumstances. However, I consider that such participation should be limited to exceptional cases and should only be used for protection of the rights of vulnerable groups – children, disabled people and so on – who are unable to protect their interests themselves, or where numerous citizens are affected by the wrongdoing concerned, or where State interests are seriously affected and cannot be protected otherwise (see Menchinskaya v. Russia , no. 42454/02, § 35, 15 January 2009 ). None of those exceptional circumstances is present here. I cannot agree with the majority that the participation of the prosecutor was necessary to protect State property. The flat in question, although it belonged to the State, was under the management of the Oceanology Institute. It was the Institute ’ s responsibility to protect that property against trespass and to participate in any related litigation. Indeed, the Institute participated in the proceedings through its representative. Nothing in the case file shows that it encountered any difficulties in bringing or pursuing proceedings and therefore there was no risk that the state interests would be left unprotected. I am unable to distinguish any well-founded, recognisable aim or public interest for the prosecutor ’ s interference in this otherwise ordinary civil dispute. Therefore, the participation of the prosecutor cannot be said to be justified in the circumstances of the present case.

In my view, this judgment regrettably sends the wrong signal to those contracting parties who strive commendably to define the important but limited role which public prosecutors should play in civil proceedings.

I consider that in this case, as in the similar case of Menchinskaya v. Russia, the principle of equality of arms was violated.