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
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 one prepared at the request of RCC Judge.
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.
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.
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.
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.
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.
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.
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.
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.
Зимняя Школа "Конституционное правосудие: практические навыки и методика игровых судебных процессов", 30 января - 04 февраля 2014 года, Москва