Participation of the Prosecutor in Non-Criminal Proceedings: ECtHR Case Law and National Context

Abstract

The article analyses the grounds for the prosecutor's participation in civil, commercial and administrative proceedings in Ukraine through the prism of European standards of fair trial. In the article the author uses the methods of analysis and synthesis, systemic-structural and logical-legal methods, as well as the methods of teleological and evolutionary interpretation of ECHR jurisprudence.

Structurally, the article is divided into three parts. In the first part, the author analyses the pan-European approaches to the participation of prosecutors in non-criminal proceedings as reflected in the documents of the Parliamentary Assembly of the Council of Europe (PACE), the Committee of Ministers of the Council of Europe (CoE), the Venice Commission, the Consultative Council of European Prosecutors (CCPE) and the Consultative Council of European Judges (CCJE). In the second part, the author analyses the participation of prosecutors outside the criminal justice system in the context of certain guarantees of the right to a fair trial as provided for in Article 6(1) of the European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR) on the interpretation and application of this Article. The third part of the article analyses the recent judgment of the ECHR in the case of Shmakova v. Ukraine, which is assessed from the perspective of the right to peaceful enjoyment of possessions (Article 1 of Protocol No. 1 to the ECHR).

The article concludes that the current trend in Ukrainian judicial practice towards an expanded interpretation of the grounds for prosecutor's participation in civil, commercial and administrative proceedings is not fully consistent with the European standards of the right to a fair trial (Article 6(1) ECHR) and the right to peaceful enjoyment of possessions (Article 1 of Protocol No. 1 to the ECHR).