22 February 2021
An interview with Olga Sidorovich, director of the Institute of Law and Public Policy, on amicus curiae in the Constitutional Court, by Marina Tsareva of Kommersant
In February, the Constitutional Court of Russia excluded the provision on independent expert opinions amicus curiae (from the Latin “friend of the court”) from its regulations. During the Constitutional Court’s existence, it has received dozens of legal opinions, 14 of which the Institute of Law and Public Policy provided. Olga Sidorovich, director of the Institute and former member of the Presidential Council for the Development of Civil Society and Human Rights, spoke about the importance of amicus curiae memoranda, their development in Russian justice, the impact of opinions on decisions of the Constitutional Court and the future of the organisations that prepared them.
What are “friends of the court”, and why are they important?
Amicus curiae refers to any organisation that carries out research activities in the field of law, or any legal scholar who submits expert opinions to the Constitutional Court during a case. These “Friends of the Court” carry out research and at the same time are responsible for the democratisation of justice through the public discussion of socially significant cases. So, the conclusions of these “friends of the court” represent legal expertise on behalf of civil society. The organisations prepare opinions on issues that were not raised by the parties involved in the case. A lawyer rarely has the time or the relevant qualifications to work to an international standard with material pertinent to the case, or to analyse the regulation of the problem in question in other legal jurisdictions. The opinions provide additional information to judges that they can use when considering the case. Accepting these materials is at the court’s discretion, which decides what is important in a particular case and what is not. In Russian practice, amicus curiae opinions are usually prepared by non-profit organisations representing the position and interests of civil society.
How and when did this institution begin to develop in Russia?
One can discuss the activities of these “friends of the court” organisations in Russia, first of all, by looking at our organisation’s example. We have been developing this practice since 2013, but, as far as I know, some opinions were submitted to the Constitutional Court by other non-profit organisations in the 2000s. Unfortunately, the Constitutional Court does not publish information about who exactly acted as amicus curiae in what years. The Institute of Law and Public Policy has sent 14 opinions to the Constitutional Court since 2013.
Unfortunately, there is a lack of open data on the Constitutional Court’s rulings. For example, as a rule, the European Court of Human Rights publishes and often refers to the opinions provided to it in the framework of the cases under consideration.
What did you focus on when you first developed the practice of submitting expert opinions?
Since working with amicus curiae, we have studied the practice of the Constitutional Tribunal of Poland and a number of other European courts. The experience of the Polish Helsinki Foundation for Human Rights was useful. The procedure for the participation of “friends of the court” or third parties has long existed at the ECtHR, so we studied the work of European university centres that submit memoranda to the European Court of Human Rights. Following the Russian academic tradition we decided to use the word “zakliuchenie” [conclusions] for our submissions.
What are the particularities of the amicus curiae institute in Russia?
The principles of objective expert research are universal and can develop globally along with academic knowledge. It was important for us to consider the problem from different perspectives and points of view, observing objectivity. In many ways we relied on the research experience of the Institute of Law and Public Policy. It is also necessary to demonstrate to the court the scale of the problem. You can’t complain about a single violation, you must complain either about gaps or unconstitutional wording of the law, or about the unconstitutional practice of applying this law.
The opinions of the” friends of the court”, which are submitted to the Constitutional Court, may be important for the immediate outcome of the case in the Constitutional Court, as well as being reflected in the legislation. In which cases do you think the impact of the opinions is strongest?
An example is the case of searches at lawyers’ offices, known in the legal community as the “Balyan and others case” (According to Kommersant, five lawyers complained about the rules of the Criminal Procedure Code, which allow courts to authorise searches at lawyers’ premises “for the purpose of finding, searching and seizing” documents containing legally protected attorney-client privileges). In 2015, when the complaint was submitted to the Constitutional Court, the Institute sent a comparative legal opinion which showed how this issue is regulated in other countries that are members of the Council of Europe. Our lawyers put forward three main arguments about the difference between the laws of European countries and the Russian criminal procedure legislation at that time.
[Five cases of the Constitutional Court heard taking into account opinions submitted by “friends of the court”: Read more in Russian.]
Firstly, Russian law did not establish any special status for documents claiming protection under attorney-client privilege during searches. We gave examples of specific legal orders in other countries where the legislation directly requires the preservation of attorney-client privilege during searches. Secondly, if this is a search at the lawyer’s office, the legislation should indicate specific objects and documents and not vague “documents, materials that are relevant to a criminal case.” The third argument is the presence of an independent observer from a bar association during a search of lawyers’ premises. Such regulations exists in a number of European countries. As a result, the court agreed with the first two arguments. The third was taken into account a year and a half later when the institution of independent observers from a bar association was finally introduced into Russian criminal procedure legislation.
Have there been similar instances of this kind?
Last year, the Constitutional Court issued a ruling in which it considered the constitutionality of the current procedures for the disclosure of medical secrets after the death of a patient. The law allowed doctors to refuse to give relatives information about the treatment and condition of the health of the deceased. In their conclusion, the Institute’s lawyers cited international legal standards regarding the disclosure of medical confidential information about deceased persons and analysed the legislative practice concerning disclosure of medical data of deceased patients in other countries. As a result, the Constitutional Court ordered MPs to amend the legislation and allow relatives of deceased patients to have access to their medical records.
In 2019, the court considered a complaint by Valery Teterin (he was refused permission to hold a rally, citing the lack of information in the notifications regarding the forms and methods to be used to ensure public order and medical assistance during the proposed public event – Kommersant.) We forwarded an opinion on international legal standards setting out respective responsibilities of the State and of the organisers of public events with regard to ensuring security and maintaining public order. In the document, the experts referred to rulings of the European Court of Human Rights, recommendations by the Venice Commission, the OSCE Office for Democratic Institutions and Human Rights, and reports by UN special rapporteurs.
We concluded that the provision of security measures is the sole responsibility of the public authorities and information provided in the notification should only help the authorities to develop a strategy to assist citizens to exercise their right to peaceful assembly.
The content of the notification cannot serve as a basis for refusing to approve an event (after reviewing the complaint, the Constitutional Court banned public authorities from refusing to allow applicants to hold rallies on the basis of uncertainty regarding the forms and methods of ensuring public order in the organisers’ applications.- Kommersant).
According to research by experts in constitutional law, amicus curiae opinions had a direct impact on court decisions in 75% of cases but were only mentioned directly in a court decision once. What do you think explains this practice?
It is probably important for the court to communicate its decision in a way and in a language that corresponds to its standards. The fact that amicus curiae opinions are not mentioned in court decisions is most likely because of court traditions.
What fundamental changes took place when the Constitutional Court formally added ‘opinions brought forward by legal experts’ to its regulations in 2017?
At that point the judges publicly showed an interest in independent expert opinions. It was a very important moment. The Constitutional Court, unlike other Russian courts, firstly, made it possible to submit such opinions; secondly, confirmed that it reads these opinions; thirdly, not infrequently takes them into account. It seems to me that such a message could influence many organisations which had expertise on certain legal issues and prompted them to start acting in the role of ‘friend of the court.’
I suspect that it could be quite hard on the staff of the Constitutional Court if, after the changes in the Court’s rules, they began to receive large numbers of expert opinions on various cases.
However, no one except for the Constitutional Court itself is in a position to know about this (the Constitutional Court press office told Kommersant that the total number of independent expert opinions received by the Constitutional Court throughout its history is no more than two or three dozen.)
How will the practice of submitting opinions change now that it has been excluded from the regulations?
I hope this change in the regulations won’t alter anything, but so far we do not know how the Constitutional Court will work with the amicus curiae principle. The Institute for Law and Public Policy hasn’t submitted one expert opinion since last autumn, but we will continue to rely on the law on the Constitutional Court and proceed from the fact that the judge-rapporteur and chair of the court will decide for themselves whether the information provided is significant for them or not. We, like other long-standing Russian non-profit organisations, have our own expert field of activity and believe that our knowledge and experience can be useful for society when considering cases in the Constitutional Court. Expert opinions will be prepared and posted on our website as before. This is what we have done and will continue to do until the law is changed and it is explicitly prohibited for us to do so.
And what about the procedure?
The change in the procedure rules did not significantly affect the process, although the decision of the judge-rapporteur to attach an expert opinion, as I understand it, must now be approved by the chair of the court. The wording of the law on the Constitutional Court is broad enough to rely on when submitting an expert opinion. I would like to note that we sent the first opinions as a letter of request to the chair of the Constitutional Court about the possibility of providing it, and later we simply referred to the article of the law on the Constitutional Court and left the issue of inclusion to the discretion of the chair and the judge—rapporteur on the case.
Can the conclusions of the amicus curiae be considered lobbying, which is ‘not far from bribery,’ as Suren Avakyan, head of the Department of Constitutional and Municipal Law at Moscow State University, put it?
I will not get into assessing why Suren Adibekovich has such a suspicious and even disrespectful attitude towards judges of the Russian Constitutional Court. The adoption of an expert opinion refers to the unique discretion of the Constitutional Court. Expressing suspicion that this is lobbying, Suren Adibekovich suspects the judges of what? That they can be bribed? This is very strange. The activities of independent non-profit organisations acting as amicus curiae are public, not behind the scenes, where private organisations or individuals promote their interests.
How can you explain the Constitutional Court’s exclusion of amicus curiae testimonies from its procedural rules?
It is likely that the reasons voiced by the Constitutional Court’s press service, namely the absence of a reference to independent expert opinions in the latest version of the law, offer the simplest explanation. Time will tell how the new version of the law on the Constitutional Court will work in practice.
Is this about a tendency in the development of law? Or can this be explained as a purely formal aspect of the issue?
The amendments to the Constitution from last year haven’t been fully implemented yet. The changes related to the activities of the Constitutional Court, for example, such as the rejection of dissenting opinions, form a particular tendency, but I would like to judge this in terms of the gradual formation of a practice by the Court itself.
Dissenting opinions were of course incredibly important for the Russian judicial community and the development of the legal system. But the decision was made, and comments and explanations were given with reference to the practice of courts of other countries. If the Constitutional Court thought that its judges should not publicise their dissenting opinions, this is probably its right. I hope that the judges still have the opportunity to express their opinion when they are engaged in their work, because this is not prohibited yet.
In the arguments by which the Constitutional Court justified the change in the rules, it was pointed out that the provision on ‘friends of the court’ in some cases ‘provoked the authors of opinions to an illogical and sometimes politically charged argumentation, which is categorically unacceptable for the activities of the Constitutional Court.’ Do you see danger in this?
In our practice, I do not remember a single opinion that would not have been on the legal issues. Only the Constitutional Court knows what conclusions with elements of political discussions it received. In any case, if the court gets the impression that the expert considerations are politically motivated, the court may simply not take them into account.
Now the Constitutional Court says that ‘it is free to choose its own friends, and real friends do not act for show.’ Can such a statement be interpreted as an appeal to organisations not to stop preparing conclusions?
It seems to me that this is just a confirmation of the fact that the judges were and will be interested in high-quality and professional expert opinions. The comments made by the Constitutional Court confirm that the judges are likely to get acquainted with and take into account the materials that they are interested in. Probably, the word ‘appeal’ is going too far – I would call it a signal worth paying attention to. Most likely, the exclusion by the Constitutional Court from its rules of the submission of opinions will not affect non-profit organizations engaged in academic and legal research and interested in the possibility of working as an amicus curiae.
How will the rejection of the amicus curiae institution affect the reputation of the Constitutional Court of Russia in the world?
This is a matter of the further practice of the court. There is nothing to be said about this yet. It can be assumed, especially in the context of today’s constitutional amendments, that researchers and fellow judges from the Venice Commission of the Council of Europe will judge the restriction of the participation of independent experts and representatives of civil society in constitutional litigation based on the further practice of the Constitutional Court in relation to its chosen ‘friends of the court.’