23, Reports of Judgments and Decisions 1997-I; and Kress v. France [GC], No. 39594/98, § 72, ECHR 2001-VI).
31. Referring to its previous case-law on the role of public prosecutors outside the criminal field, the Court reiterates that in a number of cases it clarified that the mere presence of the prosecutor or comparable officer at the courts' 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-...). In many cases the Court has also examined whether the submissions of the advocate-general or similar officer have been communicated to the applicant/party and whether the parties have had the opportunity to reply to them (see Lobo Machado v. Portugal, 20 February 1996, § 31, Reports of Judgments and Decisions 1996-I; K.D.B. v. the Netherlands, 27 March 1998, § 43, Reports of Judgments and Decisions 1998-II and {Goc} v. Turkey [GC], No. 36590/97, § 55, ECHR 2002-V).
32. The present case, however, raises different issues, since the prosecutor did not participate in the deliberations of the Krasnoyarsk Regional Court; moreover, his protest was communicated to the applicant and she used an opportunity to reply to the prosecutor's arguments. Nevertheless, the Court reiterates that since a prosecutor or comparable officer, in recommending that an appeal on points of law should be allowed or dismissed and thereby became the ally or opponent of the parties, his participation is likely to create a feeling of inequality to a party (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 were not open to criticism, the public's increased sensitivity to the fair administration of justice justified the growing importance attached to appearances (see Borgers v. Belgium, 30 October 1991, § 24, Series A No. 214-B).
33. The Court considers that whether regarded as a sharing out of representation of the State's interests or as a strengthening of the Employment Centre's position, the Prosecutor's Office intervention undoubtedly weakened the applicant's position (see, mutatis mutandis, Yvon, cited above, § 32). However, 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 case. It remains to be ascertained whether, in the instant case, in view of the prosecutor's participation in the proceedings, the "fair balance" that ought to prevail between the parties was respected (ibid.)
34. To address this issue the Court will use the opinion of the European Commission for Democracy through Law or "Venice Commission" (see paragraph 21) as it did in a number of judgments (see, among other authorities, Russian Conservative Party of Entrepreneurs and Others v. Russia, Nos. 55066/00 and 55638/00, §§ 70 - 73, ECHR 2007-...; Basque Nationalist Party - Iparralde Regional Organisation v. France, No. 71251/01, §§ 45 - 52, 7 June 2007, ECHR 2007-...; and {Ciloglu} and Others v. Turkey, No. 73333/01, § 17, 6 March 2007). The Court emphasises that it has often used for the purpose of interpreting the scope of the rights and freedoms guaranteed by the Convention intrinsically non-binding instruments of Council of Europe organs to support its reasoning by reference to norms emanating from these organs (see, mutatis mutandis, Demir and Baykara v. Turkey [GC], No. 34503/97, §§ 74 - 75, 12 November 2008). It therefore proposes to examine whether in the present case the acts of the Prosecutor's Office were compatible with proposed European standards for the Public Prosecutor's office functioning in a State governed by the rule of law (see paragraph 20 above).
35. The parties to
> 1 2 3 ... 12 13 14 15 ... 16
Zaki.ru законы и право
поиск по сайту
каталог документов
добавить сайт Zaki.ru в избранное
Правовые акты международные
Правовые акты Российской Федерации
