The problems of legal regulation of the prosecutor's participation in the civil process

Abstract

The article studies actual problems of legal regulation of prosecutor’s participation in civil procedure, analyses court practice of national courts and European Court of Human Rights. The author points out at the collisions of current legislation of Ukraine regarding legal regulation of prosecutor’s participation in court procedure. The article analyses special decisions of European Court of Human Rights in the context of prosecutor’s protection of person’s interests providing civil proceedings and necessity to follow the principle of equality of all participants in the trial and ensuring fair consideration and resolution of civil cases. In the article a special attention is paid to issues of ensuring of procedural balance of equality of all participants in the trial according to the provisions of Civil Procedure Code Of Ukraine taking into consideration that participants have no right to declare recusal of the prosecutor, insufficient level of knowledge in the sphere of law in comparison with prosecutor and extended amount of prosecutor’s possibilities concerning collection and providing evidences to the court in civil cases, and issue of enforcement of separate court ruling in the case of improper performance of professional obligations or other violation of the law by prosecutor. The author emphasizes that legally defined list of persons, whose interests can be protected in civil procedure by prosecutor doesn’t contain adult capable persons who may require such defense due to old age or disability. The author studies conflicts between provisions of the Law of Ukraine on the Public Prosecutor’s Office and Civil Procedure Code of Ukraine regarding intervention in a case, in which the proceedings have been initiated upon a claim of another person. The author comes to conclusion about expediency of legal universalization and harmonization, consideration of European lawmaking and court institute’s recommendations and consequently amendments to current provisions of the Law of Ukraine on the Public Prosecutor’s Office and Civil Procedure Code of Ukraine in order to facilitate enforcement of compliance with the principles of civil proceedings - equality of all participants in the trial under the law and before the court, adversarial character of the parties and supporting of fair consideration of civil cases with the participation of prosecutor.