Transformation of the Practice of the European Court of Human Rights Regarding the Participation of a Prosecutor in a Trial Outside Criminal Jurisdiction: Critical Aspects

Abstract

The article examines the practice of the European Court of Human Rights (ECHR) regarding the participation of a prosecutor in a court outside the criminal jurisdiction. The work aims to establish the compliance of individual decisions of the ECHR regarding the participation of a prosecutor in a court outside criminal jurisdiction with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms and the basic standards formulated by the Court in this area, as well as to outline the prospects for the application of this practice by national courts. Given the universal nature of the decisions of the ECHR, its conclusions in the cases of Mukiy v. Ukraine, Kramareva v. Russia, Dyachenko v. Ukraine were examined in detail. The analysis of the aforementioned decisions allowed us to conclude that when adopting them, the Strasbourg Court departed from its established and consistent practice on the obligation to observe a fair balance of interests between the parties, the principles of adversarial and equality of parties, as well as the inadmissibility of the prosecutor’s intervention in the case to influence the court and its conclusions. Separately, the work draws attention to the inconsistency of these decisions with the signs of universality and predictability, and as a result, a violation of the principle of legal certainty. In view of the above, it is concluded that courts, when administering justice, should carefully use the legal positions outlined in the cases of Mukiy v. Ukraine, Kramareva v. Russia, Dyachenko v. Ukraine. After all, their application may lead to an expanded interpretation of the limits of the permissible participation of the prosecutor in civil, administrative, and economic proceedings. This will entail a departure from the constitutional principles provided for in paragraph 3 of part 1 of Article 131¹ of the Fundamental Law, which authorise the Prosecutor’s Office of Ukraine to represent the interests of the state in court, in exceptional cases and in accordance with the procedure established by law. To maintain the exclusive role of the prosecutor in representing the interests of the state in court, as well as to avoid an expanded interpretation of the limits of his permissible participation in civil, administrative and economic proceedings (as can be seen in the cases of Mukiy v. Ukraine, Kramareva v. Russia, Dyachenko v. Ukraine), national courts are invited to be guided by the Decision of the Second Senate of the Constitutional Court of Ukraine of December 3, 2025 in case No. 6-р(II)/2025, which establishes an indicative range of exceptional cases of the exercise by the Prosecutor's Office of Ukraine of the constitutional function of representation.