DISSENTING OPINION OF JUDGE SERGHIDES

Whether the prosecutor’s participation in the proceedings has led to a violation of the applicant’s right to a fair hearing

under Article 6 of the Convention

1. I respectfully disagree with the judgment in its conclusion that the public prosecutor’s participation in the proceedings – which were civil in nature and concerned an employment case – did not upset the fair procedural balance between the parties and that it has not therefore led to a violation of Article 6 of the Convention.

2. As stated in the judgment (paragraph 43) “[t]he prosecutor gave an opinion that that the applicant’s central claim concerning her reinstatement should be dismissed, since in the prosecutor’s opinion that claim had no legal basis in domestic law” (see also paragraph 7 of the judgment). The District Court, before which this opinion was given, endorsed the said opinion and rejected the applicant’s claim that the termination of her employment contract was unlawful and that she should be reinstated. On appeal before the Moscow City Court, the prosecutor supported the judgment of the District Court and it was upheld (see paragraphs 10-12 of the judgment).

3. In my view, the prosecutor’s intervention in the proceedings breached the principle of adversarial proceedings and the principle of equality of arms.

4. The judgment argues that the applicant did not prove that the domestic courts were bound by the prosecutor’s opinion (see paragraph 43).

5. I submit that it is immaterial whether the domestic courts were or were not bound to accept the prosecutor’s opinion. The crux of the matter is – or should be – that the domestic courts might be influenced by the opinion of the prosecutor, who being a State organ and not a party to the proceedings, intervened therein with the aim of influencing those courts (at both first instance and on appeal) and the outcome of the case before them.

6. The judgment also argues that it was not proven that the prosecutor acted as the applicant’s “adversary” (ibid.).

7. In my view, this is incorrect since the prosecutor argued before the domestic courts that the applicant’s claim was legally unfounded and should be rejected, thus procedurally and substantively acting as the adversary of the claimant.

8. Furthermore, the judgment considers that the principle of adversarial proceedings was respected because the prosecutor’s opinion was made public and put on record and that both parties had an opportunity to make submissions in reply to it (ibid).

9. With all due respect, that argument is somewhat irrelevant. In my view, what undermined the principle of adversarial proceedings in the present case was the fact that the prosecutor intervened in the proceedings by taking a stance which was against the applicant’s claim and in favour of her opponent’s position, and, by doing so, tipped the balance to the applicant’s disadvantage.

10. Lastly, the judgment concludes that “[i]n the absence of further arguments by the applicant on how the prosecutor’s participation affected the fairness of the proceedings, either in terms of equality of arms or in terms of safeguarding the principle of adversarial process, the Court finds no grounds to conclude that that opinion unduly influenced the courts, prevented the applicant from bringing an effective defence or otherwise upset the fair balance between the parties” (see paragraph 44).

11. In my submission, this conclusion is incorrect for the reasons explained above. What is more striking for me is that the Court, in reaching that conclusion, overlooked the apparent influence that the prosecutor’s opinion might have on the domestic courts and placed the burden on the applicant to prove that the prosecutor’s participation had influenced the fairness of the proceedings. However, that influence was self-evident and needed no proof.

12. In addition, one may wonder what would be the aim of the prosecutor’s joining the proceedings and giving an opinion if the purpose of doing so was not to persuade the domestic courts! The provision giving this power to the prosecutor is Article 45 of the Code of Civil Procedure (cited in paragraph 16 of the judgment), paragraph 3 of which provides that “[a] Prosecutor shall join the proceedings and give an opinion in cases concerning ... reinstatement in employment ...”. However, the initial decision on whether or not to intervene appears to be discretionary. Indeed, the majority state (paragraph 41) that “even in such cases a prosecutor’s participation is not compulsory”.

13. In any event, this statutory participation of the prosecutor is not prescribed without a purpose; its aim is to influence the domestic courts and this cannot be done without harming the party against which the prosecutor’s opinion is directed.

14. The very fact that the prosecutor, by virtue of Article 45, chooses to “join” the proceedings, and thus to become somehow a party thereto, makes it even more apparent that the principles of adversarial proceedings and of the fair balance between the parties are undermined.

15. Paragraphs 43-44 of the judgment indeed treat the prosecutor as a party to the proceedings and on this basis they argue that the applicant could have brought an “effective defence” against the prosecution’s opinion. The applicant is thus placed in a negative situation where she was expected to defend herself as regards the prosecutor’s opinion, in addition to asserting her claims against her former employer. In the present case, in addition to there being a breach of the right to a fair hearing under Article 6 § 1 of the Convention, blatant disregard has been shown for the rule of law and the principle of effectiveness.

16. The principle of effectiveness requires that human rights secured by the Convention must be interpreted and applied in a manner that is practical and effective and not theoretical or illusory (see on this principle, Georgios A. Serghides, The Principle of Effectiveness and its Overarching Role in the Interpretation and Application of the ECHR – The Norm of all Norms and the Method of All Methods, Strasbourg, 2022). A human right, in the present case the right to a fair trial, cannot be practical and effective if when it is exercised there is a third party, a State organ (i.e., the public prosecutor), which joins the proceedings with the aim of influencing the court as to the outcome of the case.

17. It is also my submission that the rule of law is automatically violated every time the requirement of fairness and the principle of effectiveness are disregarded (see on the interconnection between the rule of law and the principle of effectiveness, Serghides, cited above , pp. 664-669, 714-719).

18. The Court, in the present case, though referring to its case-law (see paragraph 33 of the judgment), nevertheless does not seem to follow the relevant findings (which it regards as relating to the focus “in the past”, ibid.), whereby the mere presence of a prosecutor, Government commissioner or comparable officer at a court’s deliberations, “be it ‘active’ or ‘passive’, is deemed to be a violation [of Article 6 § 1 of the Convention]” (see Martinie v. France [GC], no. 58675/00, § 53, ECHR 2006). Despite the above contrary case-law of the Grand Chamber – which in my view reflects the case-law at present and also applies to such interventions at a court’s hearings – the Court in the present case has mainly based its judgment on a decision of the First Section of the Court, namely Chernysheva v. Russia ((dec.), no. 77062/01, 10 June 2004), to support its view that the fact that a prosecutor participated in civil proceedings cannot as such give rise to an issue under Article 6. However, the Court in the present case has overlooked the fact that in Chernysheva the public prosecutor was a plaintiff in civil defamation proceedings and not a third party joining a dispute between two private parties, as the prosecutor did in the present case.

19. In addition, the Court, though referring to the relevant recommendation of the Parliamentary Assembly and the opinion of the Venice Commission, as well as to the relevant judgment, namely Menchinskaya v. Russia (no. 42454/02, § 39, 15 January 2009), which endorsed those instruments and concluded that the prosecutor’s intervention in appeal proceedings had undermined the principle of equality of arms (see paragraphs 20, 21 and 36-37 of the judgment), nevertheless ultimately overlooked them.

20. There is no doubt that the role of the prosecutor in the present case was not a passive one (a mere presence) but an active one and that it turned out to be very influential for the domestic courts and the outcome of the case. Nor is there any doubt that in the present case there were no special circumstances, such as the protection of vulnerable persons unable to defend their own interests, which would justify a prosecutor’s participation in the proceedings (see Batsanina v. Russia , no. 3932/02, § 27, 26 May 2009, and Gruba and Others v. Russia, nos. 66180/09 and 3 others, §§ 96-99, 6 July 2021, also referred to in paragraphs 36 and 37 of the judgment, respectively).

21. In the light of what has been said above, I conclude that the prosecutor’s participation in the proceedings has led to violation of the applicant’s right to a fair hearing. Consequently, there has been a violation of Article 6 of the Convention. It would be appropriate in the present case to award, under Article 41 of the Convention, an amount for non-pecuniary damage in favour of the applicant, but since I am in the minority there is no point in determining the extent of such damage.