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Institute for Law and Public Policy

Address: 129090, Moscow, Shchepkina str., 8

Mailing Address: P.O. Box 140, Moscow, 129090, Russia

Tel.: +7 (495) 608 6959, 608 6635; Fax: +7 (495) 608 6915

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Enhancing Civic Engagement in Strategic Constitutional Litigation in Russia
Amicus Curiae Briefs

Although a figure of amicus curiae is well-recognized in foreign jurisdictions and in international courts, this mechanism of civil society’s participation has long been unknown and undervalued in the system of Russian constitutional justice.

The Institute has inaugurated the practice of amicus curiae briefs submission in constitutional litigation and got all of its briefs accepted by Russian Constitutional Court (RCC) into the case files.

So far, we have submitted 8 amicus curiae briefs on complex constitutional issues, including two prepared at the request of RCC Judge.


September 2017

Institute for Law and Public Policy files an amicus curiae brief in the RCC case on re-examination of final judicial decisions based on rulings of the Supreme Court

On 26 September 2017 the Constitutional Court of the Russian Federation (hereinafter – RCC) reviewed the grounds for re-examination of a final judgment, determined in §5(4) of Article 392 the Code of Civil Procedure of the Russian Federation. This provision stipulates that such grounds include changing the practice of applying law in a judgment of the Presidium of the Supreme Court or by a judgment of the Plenary Session of the Supreme Court. The article therefore introduces a closed list of grounds for re-examination of final judgments.

However, the applicants’ cases were reviewed upon several rulings by the Judicial Chamber on Civil Cases of the Supreme Court at the request of the Federal Social Security Service. This led to a significant reduction of social security benefits and services they received from the state.

According to the applicants’ legal position, this provision allows a final and binding judicial decision to be quashed due to the rulings of the Judicial Chamber on Civil Cases of the Supreme Court on similar cases changing the interpretation of legal norms and thus contradicts the Constitution of the Russian Federation.

In the brief submitted to the Court, the Institute focused on analysis of social and historical context of the Russian courts’ case law on re-examination of final judicial decisions based on the ruling of the Judicial Chamber on Civil Cases of the Supreme Court recognized as a new circumstance.

Analysis conducted by the Institute leads to the following conclusions:

Firstly, the final judicial decisions made in disputes to which the State is a party are re-examined almost exclusively in favor of state bodies and state-owned legal entities. As a consequence of such review, citizens lose entitlement for social benefits granted for them previously, and face with the risk of retrospective recalculation of the judicial award already made.

Secondly, the emerging practice of considering the rulings of the Civil Chamber of the Supreme Court as a ground for re-examination of the final judicial decision is not compatible with the Constitution of the Russian Federation. Such practice is a new extraordinary judicial procedure used by state organs and institutions in order to avoid the fulfillment of social obligations imposed on them. The quashing of the binding and enforceable decisions does not pursue any legitimate aim. Public interest in the fair distribution of budgetary funds cannot justify retrospective recalculation of social benefits, which were determined in accordance with final judicial decision.

Text of the amicus curiae brief (in Russian)


July 2017

On July 19, 2017, the Institute for Law and Public Policy submitted to the European Court of Human Rights (ECtHR) its written comments in the proceedings brought by 61 Russian non-governmental organizations (NGOs) regarding Russia’s Foreign Agents Act (Application No. 9988/13, Ecodefence and others v. Russia and 48 other applications). Earlier on May 31, 2017, the Institute was granted leave to intervene in the case as a third party. The Institute’s written comments were submitted in accordance with Article 36.2 of the European Convention and Rule 44.3 of the Rules of Court. The full text of the Institute’s written comments, which were prepared in English, can be found here.

The purpose of a third party in the ECtHR is to analyze general principles relevant to a case and present these to the Court. The case of Ecodefence and others v. Russia concerns the application of the Foreign Agents Act to Russian NGOs receiving funding from foreign sources. This case touches upon principal questions related to the acceptable level of state interference in civil society.

In its written comments, the Institute notes that international law guarantees access to resources for NGOs as an inherent part of their right to freedom of association, as confirmed by relevant universal and regional authorities. As such, the United Nations Human Rights Council has specifically called upon states to ensure that “no law should criminalize or delegitimize activities in defence of human rights on account of the origin of funding thereto.” According to a recommendation of the Committee of Ministers of the Council of Europe from 2007, “NGOs should be free to solicit and receive funding – cash or in-kind donations – not only from public bodies in their own state but also from institutional or individual donors, another state or multilateral agencies, subject only to the laws generally applicable to customs, foreign exchange and money laundering and those on the funding of elections and political parties.”

The Institute concludes that the Russian Foreign Agents Act interferes with the right to freedom of association because (1) it discourages reliance of NGOs on foreign financial support, (2) it puts additional financial and administrative burdens on those NGOs which receive and use foreign funding, and (3) it provides for separate offences with higher penalties for failure to comply. Moreover, the interference does not pursue any legitimate aim. The Institute analyzes internationally recognized aims for limiting non-commercial organization’s access to funding and concludes that none of these are applicable to the Russian Foreign Agents Act. Firstly, traditional restrictions related to national security or public safety (enforcement of laws on customs, foreign exchange, prevention of terrorism financing and money laundering, and those on the funding of elections and political parties) have not been relied upon by the Russian authorities as justification for the Foreign Agents Act and are in any event inapplicable in this case. Secondly, disclosure and reporting requirements for lobbyists controlled by foreign principals, provided for by the United States Foreign Agents Registration Act, are fundamentally different from the restrictions introduced by the Foreign Agents Act in Russia. Therefore, to the extent the Russian authorities refer to FARA as a model for the Foreign Agents Act, such references are erroneous and misleading. The declared aim of the Russian Foreign Agents Act is to ensure the transparency of Russian NGOs. However, “transparency” is hardly a legitimate aim per se, but is a means towards the fulfilment of other aims (as, for example, disclosure of financial information by NGOs might contribute to the prevention of money laundering and terrorism financing, thus protecting national security and public safety). The Institute demonstrates that the true aim of Russia’s Foreign Agents Act is the protection of national sovereignty and the prevention of foreign influence on Russian society. Moreover, the indicated aims cannot be considered legitimate for limiting the activities of civil society organizations. The United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association in 2013 came to a similar conclusion, as do the OSCE Guidelines on the Protection of Human Rights Defenders.

The Institute also notes the practice of several other countries who, after Russia passed its Foreign Agents Act, either began discussing or introduced similar limitations on foreign financing of NGOs with reference to perceived protection from “foreign influence”. Such countries include Hungary, Israel, Kazakhstan, Kyrgyzstan, Ukraine, Armenia, and Slovakia. By finding that restrictions introduced by the Russian Foreign Agents Act do not serve a legitimate aim, the ECtHR has a chance to halt this alarming tendency.

Earlier, in 2014, the Institute presented its amicus curiae brief on Russia’s Foreign Agents Act when the Russian Constitutional Court considered the constitutionality of this law. The Institute’s brief was accepted by the Court and is available here (in Russian).

Anna Pushkarskaya Foreign Agents Act is Suspected of Influence (in Russian)


December 2016

On 15 December 2016, the Constitutional Court of the Russian Federation (hereinafter – RCC) reviewed the possibility of enforcement of the judgement of the European Court of Human Rights (hereinafter – ECtHR) of 31 July 2014 in the case of OAO Neftyanaya Kompaniya Yukos v. Russia. This is the second case when the RCC is asked to decide whether a decision of an international human rights body can be enforced in accordance with the Constitution of the Russian Federation. In the judgement of 31 July 2014 the ECtHR held that Russian Federation was under an obligation to pay the applicant company’s shareholders as they stood at the time of the company’s liquidation and, as the case may be, their legal successors and heirs EUR 1 866 104 634 as compensation for violation of Article 1 Protocol No. 1 to the European Convention on Human Rights.

The Institute for Law and Public Policy has filed an independent expert opinion (amicus curiae brief) upon the request of a RCC judge in which it examined the ECtHR case-law on the issue of admissibility of individual applications submitted by company’s shareholders and affording them just satisfaction, as well as its case-law in relation to criteria for lawful levying of public dues (taxes, tax sanctions, administrative charges etc.). Moreover, the Institute examined the possibility of enforcement of the 31 July 2014 ECtHR judgement in accordance with the Constitution of the Russian Federation.

Analysis conducted by the Institute leads to the following conclusions:

1. Company’s shareholders can participate in the proceedings before the ECtHR either as applicants or as beneficiaries of a just satisfaction award. In the former case shareholders cannot normally act as applicants if company’s rights are violated save for exceptional circumstances. As for the latter situation, of which the OAO Neftyanaya Kompaniya Yukos v. Russia case is an example, under some circumstances shareholders, in their capacity as legal successors of a company liquidated in the course of proceedings before the ECtHR, are entitled to benefit from the ECtHR just satisfaction award despite not exhausting domestic remedies and not being a party to the proceedings before the ECtHR, and not qualifying as “victims” of a Convention violation.

2. The approach taken by the ECtHR in the case of OAO Neftyanaya Kompaniya Yukos v. Russia does not contradict its prior practice on Article 1 Protocol No. 1 standards governing lawful levying of taxes, tax sanctions and administrative charges. These standards, firstly, impose a requirement of clarity and foreseeability of the law (including both statutory law and case-law), which should normally allow a person to foresee the consequences of their actions, and, secondly, oblige a State-Party to assess whether levying public dues would lead to a person’s inability to resume economic activity after paying those dues.

3. Payment of compensation to Yukos shareholders is a constitutionally acceptable way of enforcing the judgement of the ECtHR of 31 July 2014 in the case of OAO Neftyanaya Kompaniya Yukos v. Russia. Payment of just satisfaction, afforded by the ECtHR for Convention violations, arising out of unlawful enforcement actions and decisions of national courts, not only does not contradict, but, quite the contrary, directly follows from general principles of the relation between the Constitution of the Russian Federation and judgements of the ECtHR. The ECtHR 31 July 2014 judgement bears no contradiction with fundamentals of the constitutional system of the Russian Federation and the Constitution provisions on rights and freedoms, and their interpretation by the RCC in its judgements of 14 July 2005 N 9-П and of 30 July 2001 N 13-П. The Russian Federation is entitled to establish any just satisfaction payment scheme within the boundaries set by paragraphs 2(a) and 2(b) of the operative part of the 31 July 2014 judgement. In doing so it may apply (by analogy and insofar as they are compatible with the essence of enforcement of the ECtHR just satisfaction award) provisions of the Russian Civil Code governing property distribution in bankruptcy proceedings.

Text of the amicus curiae brief (in English)

Appendix to the amicus curiae brief (in Russian)

Video of the session of the Russian Constitutional Court on December 15, 2016.

 


March 2016

Institute has filed an independent expert opinion (amicus curiae brief) in which it outlined possible ways to interpret art. 32(3) of the Russian Constitution for the purposes of the decision on compliance with the ECtHR ruling of 4th July 2013 in the case of Anchugov and Gladkov v. Russia.

Analysis conducted by the Institute leads to the following conclusions:

(i) Determination of the meaning of art. 32(3) of the Russian Constitution is informed by the principle of consistent interpretation. In accordance with this principle, where several interpretations are possible, an interpretation allowing Russia to avoid a breach of its international obligations is to be preferred.

(ii) Systemic, historical and evolutionary approaches to the interpretation of art. 32(3) of the Russian Constitution demonstrate that an absolute ban on prisoners’ voting is not the only possible interpretation of art. 32(3). In particular:

a) Systemic interpretation allows to weaken the ban by way of taking into account various mitigating factors in accordance with the principle of proportionality and (or) the need to guarantee the highest level of protection of individual rights and freedoms.

b) Historical interpretation shows that no goals and interests that would justify a blanket restriction of prisoners’ voting rights exist in the present day. To the contrary, Russian history provides positive examples of a disenfranchisement that was not automatic and indiscriminate.

c) Evolutionary interpretation of the said article in the context of existing trends in international law is consistent with the systemic and historical interpretations, establishing a differentiated restriction of voting rights in accordance with the principles of necessity, proportionality and the need to guarantee to highest level of protection of individual rights and freedoms.

(iii)The ECtHR judgment in Anchugov and Gladkov v. Russia may be complied with by way of enactment of legislation governing prisoners’ voting rights on the basis of such factors as the gravity of offence, mens rea, and (or) the length of the prison term, or by empowering the courts to impose a restriction of voting rights as a form of punishment on a case by case basis.

Text of amicus curiae brief (in English)

 


December 2015

The Institute prepared an expert opinion in RCC case on searches in attorneys’ offices

In support of the claimants’ legal position, the Institute has filed an independent expert opinion (amicus curiae brief) to the RCC featuring the results of comparative research of standards of protection granted to lawyers’ professional secrecy in the CoE Member States. The analysis helped to identify key safeguard guaranteeing immunity of client-attorney privilege:

(i) generally documents covered by attorney’s professional secrecy cannot be subject to search and seizure, except cases where a lawyer is suspected of committing a crime;

(ii) a search order must specify particular items and materials subject to search and seizure, and these items and materials should relate to particular suspicion and/or charges against a lawyer;

(iii) in most jurisdictions, a search of a lawyer’s office can only be conducted in the presence of an independent third party representative (bar association delegate or a judge);

(iv) usually legislation provides a form of control and dispute resolution in circumstances where a claim of legal professional privilege is made by a lawyer or a third party.

Text of amicus curiae brief (in Russian)

 


October 2015

The Institute prepared an expert opinion on a case concerning lost profit reimbursement in rehabilitation procedure submitted to the RCC

In the brief submitted to the Court, the Institute concentrated on analysis of the Russian courts case law concerning compensation of profits lost because of wrongful seizure of property. The analysis has revealed legal uncertainty over the due order of lost profit reimbursement. Today, courts either refuse to hear cases in a civil procedure, or deny an opportunity to review such actions in criminal (simplified) procedure according to Chapter 18 of the CPC. Furthermore, we identified cases where courts disagreed to interpret the norms of the CPC as allowing companies to recover their lost profits in general.

In the brief, the Institute argued that actions filed by rehabilitated companies seeking compensation of profits they lost due to wrongful criminal prosecution should be reviewed in the simplified order prescribed by Chapter 18 of the CPC (“Rehabilitation”), as it is the only way to balance the use of streamlined assets seizure by the state prosecution authorities.

Text of amicus curiae brief (in Russian)

 


April 2015

The Institute acted as amicus curiae in case concerning domestic legal status of Opinions of the United Nations Working Group on Arbitrary Detention (WGAD) rendered in favor of individual applicants

It was stated that Opinions of WGAD do not impose obligations of mandatory character on a state. However, according to the Constitution and international agreements, the Russian Federation cannot avoid cooperation with WGAD, which implies responding to the opinions of WGAD rendered in respect of Russia and undertaking steps to restore the violated rights of a detained person. 

Text of amicus curiae brief (in Russian)

 


January 2015 

The Institute presented an amicus curiae brief in RCC case on overbroad “search and seizure” powers of the Prosecutor’s Office.

The submitted brief analyzed the Council of Europe standards on non-criminal powers of prosecutors and assessed compliance of the norms of Russian Federal law of January 17, 1992 No 2202-1 “On Prosecutor's Office of the Russian Federation” to these standards. The key requirements identified by the Institute were as follows: (1) limitation of prosecutor’s powers to those cases in which such functions cannot be performed by other agencies and officials; (2) conducting of inspection only under reasonable grounds for suspecting an infringement; (3) specific reasoning of actions or decisions taken in respect of an inspectee; (4) judicial control over actions and decisions of a prosecutor, including review of decision on launching inspections and measures undertaken during inspection. 

Text of amicus curiae brief (in Russian)

 


March 2014

The Institute submitted an amicus curiae brief in RCC case on constitutionality of the law on “foreign agents”.

The high-profile case addressed multiple issues considering the law that obliges Russian NGOs register as “foreign agents” if they engage in political activity and receive funding from foreign sources.

The document filed to the RCC covered differences in regulation provided by the Russian Federal law of January 12, 1996 No. 7-FZ and U.S. Foreign Agents Registration Act (1938). Despite frequent appeals to FARA during the legislative process, no similarities are detected between the two laws. While the U.S. law is designed to guarantee transparency in political decision-making process and defines “foreign agents” mainly as persons representing a foreign governmental or commercial subjects before agencies or officials of the U.S. Government,  Russian regulation intervenes with the civil society functioning.

Text of amicus curiae (in Russian)

Text of amicus curiae (in English)

 


November 2013

The Institute acted as amicus curiae in a case concerning conflicting case law of ECtHR and RCC.

The Institute submitted a comparative study of conflicts that have previously arisen between ECtHR decisions and national judicial authorities’ rulings. It was pointed out that in many cases, despite a declared approach to “block” application of ECtHR’s decisions for protection of national constitution, courts regularly review the decisions they have delivered earlier. In certain rare cases national courts use their “right to object”. However, it does not apply to cases decided by the Grand Chamber or by the Chambers uniformly, since such decisions usually reflect a consensus among the Member States of the Council of Europe.

Text of amicus curiae brief (in Russian)

 
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