Constitutional Court decides to do away with the practice of ‘amicus curiae’

4 February 2021

Source: Moscow Helsinki Group

The Constitutional Court has removed the practice of ‘amicus curiae’ (‘friends of the court’) from its rules of procedure – Paragraph 34.1 on legal organisations and legal legal academics and scholars providing opinions on cases. The changes were pointed out by Olga Kryazhkova, a constitutional law specialist and PhD in law, RBK reports.

The Constitutional Court has turned its back on third-party submissions by organisations and individuals engaged in legal scholarship in order to guard against lobbyism and to close loopholes for political pressure. So from now on independent experts will not be able to provide opinions on trials that are of public importance. At the same time the Constitutional Court has not decided to reject opinions provided by government agencies, which means that it considers only those opinions objective. Some experts argue that the presentation of alternative opinions could undermine the standing of decisions taken by the Constitutional Court under the newly adopted constitutional rules.

The institution of ‘friends of court’ appeared in the rules of procedure of the Constitutional Court only in 2017. Since 2012 NGOs have provided opinions to the judge-rapporteur who has the right to attach documents to the case. According to Kryazhkova, opinions were submitted regularly by NGOs and have usually influenced rulings. ‘There are scholarly studies on this, which show that the texts of the Constitutional Court judgments, and sometimes the texts of the special opinions of the judges, contain the ideas suggested in the memoranda of the friends of court. There are not many cases where an opinion was not taken up by the Constitutional Court and ignored,’ she added. The lawyer said that after the changes in the constitutional court’s rules of procedure, there is no ban on submitting opinions. However, the chance that they would be considered is seriously diminished. In her opinion, these changes will have a negative impact on the credibility of the Constitutional Court.

Sergei Pashin, a member of the Moscow Helsinki Group, a professor at the Higher School of Economics and retired federal judge, told Nezavisimaya gazeta that ‘amicus curiae’  is what ‘has been helping the Constitutional Court in its work all these years, keeping it from becoming a definitive bureaucratic branch of the regime. Now it is possible that ‘working practices will change little, but the atmosphere will deteriorate greatly.’ Pashin questioned whether the law professors who had brought much good advice to the Constitutional Court could be regarded as politicised experts.

He noted that in ordinary courts, such opinions would be written on the initiative of the parties involved. These were called for mainly in arbitration proceedings, more rarely in civil cases, but barely recognised at all in criminal proceedings. The Supreme Court’s view is that judges are also experts in legal issues, and ‘don’t need anyone else’s advice.’ This is why parties would, for example, contrive to submit expertise as part of their own pleas. There were also cases where parties would write their plea on the back of an expert’s opinion so that it had to be admitted to the case, Pashin said. According to him, outside opinions do not play a particular role for courts of general jurisdiction because judges have a hierarchical relationship with their ‘curators’: they report to the court chairman or to the responsible official in a higher court who oversees a group of district courts.

But now the Constitutional Court too has become a mouthpiece for and defender of those in power, although this had already begun ‘at the time when the president suspended the activities of the Constitutional Court with his 1994 decree and that body realised who was calling the shots.’ This is why the Constitutional Court now has to take pro-government positions, ‘sometimes even contradicting itself, as with the question of whether gubernatorial elections are an integral part of the constitution, for example.’ In general, the Constitutional Court is an organ for legitimising the instructions of those at the top. As such, the abandonment of the ‘amicus curiae’ principle in the wake of the ban on publication of dissenting opinions of Constitutional Court judges perfectly fits the new style of a closed government institution. The Court doesn’t need alternative points of view as these reduce the authority of the final ruling. As though to say, ‘there is no reason to violate the unity of opinions – even if it’s discreditable, at least it is immutable.’

As Ilya Shablinsky, a legal scholar and expert with the Moscow Helsinki Group, told Nezavisimaya gazeta, the problem is also that only non-state and independent institutions are being weeded out, but expertise from official institutions will continue to be submitted to the Constitutional Court. ‘And they are far from free from political bias, their opinions can hardly be characterised as based on the best legal scholarship,’ he said. That means a situation arises in which ‘practically all decisions made by the Constitutional Court will be in favour of the authorities.’ ‘In my view, this is one of the bleakest symptoms of the coming era, in which justice is practically losing its objectivity and is becoming a branch of the executive branch,’ Shablinsky emphasised. In his opinion, it’s hard to imagine that the rejection of ‘friends of the court’ could have happened ‘without an instruction from the presidential administration,’ not least because the chair of the Constitutional Court, Valery Zorkin, viewed such expertise previously ‘as perfectly acceptable and even sometimes in the best interests of the Court.’ But now, the Court’s work is seemingly more and more focused precisely on protecting the interests of the current government. 

According to Tamara Morshchakova, an advisor to the chairn of the Russian Constitutional Court, a former judge of the Constitutional Court herself and  a laureate of the Moscow Helsinki Group human rights’ prize, the provisions of the Constitutional Court’s regulations regarding such ‘letters of friends of the court’ showed the readiness of constitutional justice to take into account views that were of public importance, as well as recognition of the real participation of citizens in the affairs of the State, in various forms. 

Morshchakova told Gazeta.Ru: ‘This is consistent with the constitutional requirement that justice ensures its accessibility to both participants in any particular case and to society in general. Justice should not be done behind closed doors, without the possibility of information that is significant for a case being passed to it and also without informing the public about the nature of the issues being considered.’

Morshchakova continued: ‘Unfortunately, the reverse trend has now become quite widespread: courts hold closed sessions, they deny trial participants with both open proceedings, the opportunity to examine materials, significant for the case, that they have presented to the court, and access to evidence that the court possesses, without any justification. Access to forensic information, despite all the modern means and resources of the internet, is ata the same time becoming more restricted.” 

Morshchakova expressed certainty that the tendency to hold closed hearings is also evident in the field of constitutional justice. ‘To allow the opinion of experts on the subject under consideration is to make it public, to listen to and to examine expert positions, to justify why they might be rejected. If court proceedings are becoming increasingly less open in general, then, that tendency is, of course, strengthened by the refusal to accept submissions by friends of the court,’ Morshchakova explained. 

She regards the rejection of the practice of considering the opinions of impartial experts as evidence of an aversion to listening to citizens, be they independent professionals, representatives of professional associations, or NGOs. ‘This results in restricting the involvement in judicial proceedings of what is described as the public forum,’ Morshchakova warned and pointed out that ‘the openness of judicial proceedings is intended to mean that everyone involved in a trial knows that the proceedings are being watched not only by state structures, but also by civil society, because the constitution demands that citizens are party to the implementation of justice.’

‘To close the door to such a simple means of providing access for public opinion on matters being considered by the Constitutional Court, such as submissions by friends of the court, is also a restriction on the participation of citizens in the judicial process,’ Morshchakova concluded.

Olga Podoplelova, head of the legal department of Rus Sidyashchaya [a prisoners’ rights NGO – ed.], told RBK that submissions by ‘friends of the court’ are common practice in the highest national and international courts.

Olga Podoplelova said, ‘Submissions of this kind are important in that they improve both the quality of justice through expert information submitted by academic institutions and by expert organizations and to some extent they also improve the level of public confidence in the court.’ Podoplelova added that these submissions were made in a very specific manner and only in cases that could set a legal precedent and could have major implications for legal practice. In Russia, this practice has also been used to uphold alternative points of view in trials where government bodies are involved.

Translated by Simon Cosgrove, Elizabeth Rushton and Graham Jones

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