ABOUT AN AMICUS CURIAE[1]
- Definition:
Amicus Curiae, the Latin word for "friends of the court" is a figure of law, used before a Court or Tribunal that is failing a litigation in which we are not a Party, but where issues are discussed in which we are expert or have an experience that allows us to think reasonably, so that substantial and relevant elements are brought into the Court or Tribunal to fail in the sense that we consider correct.
There are many definitions of this figure in which several functions are attributed; here are some:
"An amicus curiae educates the Court on legal issues that are in doubt, gathers or organizes information, or raises awareness about some aspect of the case that the court might otherwise omit. Whoever presents it is usually, but not necessarily, a lawyer, and generally not paid for this work. An amicus curiae must not be made by the parties, but if must have some knowledge or perspective that makes this document or its contents, a valuable asset to the court".
"The presentation of an Amicus curiae aims to fulfill a dual function: 1). Provide the court, under whose examination is a legal dispute of public interest, arguments or opinions that may serve as evidence to enlighten the decision. 2). Provide a public character to the arguments used against a question of general interest decided by the Judiciary Power, clearly identifying the position of the stakeholders, and contributing with reasons with which the court will adopt and submit its decision.
This second function allows the expansion of the legal arguments discussed in the process, making the amicus curiae a mechanism of citizen participation that makes the search for justice a collective activity, not only restricted to the judge's decision and the Parties’ arguments. In addition, it is the opportunity to add these amicus to the case’s file; it operates as a control mechanism to the court itself that cannot ignore opinions that were provided by community stakeholders, individuals or NGOs renowned in citizenship".
"The figure of the amicus curiae is widely known and accepted nowadays by national and international courts, even in the absence of an express legal provision. The figure is a manifestation of the exercise of freedom of expression, of the right to petition and a tool to strengthen a republican government. The amicus curiae promotes broad consideration on matters of institutional importance or public interest without expanding the universe of cases to be decided by the court and without affecting the rights of the litigants".
The Amicus Curiae must be differentiated from other figures of participation of third parties in the litigation. It is not a testimony or an evidence because it is not a proof since it is not being brought by the parties, hence it is not a matter of probation discussion (principle of contradiction), and the judge is not obliged to observe. Nor is it an expertise, even though with the amicus knowledge is shared with him, because the expert’s report is presented at the request of the judge or the parties and it ends up as an integrated part of the evidence that must be considered, under which the court gives its judgment.
The Amicus in Ecuadorian law cannot be assimilated as a figure of citizen participation as it is contained in Art. 27 of the Rules of Procedure for the Exercise of Powers of the Constitutional Court , for there it expressly asks the citizens to take a sided opinion with the plaintiffs' claims or with the causes of the defendant, and the nature of the Amicus is being amici (friend) of the Court, not of the parties.
2. Characterization:
While our environment is not a well-known figure, the fact is that in Latin America it tends to be used extensively, and in some countries it is accepted as formal figure of minority interest participation in litigation. The figure of Amicus Curiae is valid when:
• A Court or Tribunal is resolving a dispute.
That is, there needs to be an open case, and that the Court is debating. That means that you cannot submit an Amicus before initiating litigation or when the case has been decided. It is essential to know then if the time of submission of Amicus is appropriate with the times for discussion of the judiciary in question.
There is no limitation on the type of litigation that may be subject to Amicus or issues on which they can relate.
Cases can be individual or collective actions, they can be of public or of inter party character. There are many examples of amicus before national courts, for example, in the processing of unconstitutionality actions, popular actions (collective or class actions), and appeals, in favor of trialed people or to contribute to the accusation of serious crimes against humanity and even in the processing of habeas corpus.
There are also examples of Amicus regarding cases before the Inter-American Court of Human Rights or when it gives advisory opinions to the States, even before international arbitration courts in defense of economic, social and cultural rights.
• When matters of public interest are discussed, usually related to the recognition of a right.
Basically the standing to file an amicus begins with the interest of the amici in the topic of discussion and that interest is usually related with the motivation, awareness or illustration of judicial operators in vital matters for the satisfaction of rights, democratization of institutions, conflict prevention or rights violations.
As a general framework of legitimacy for the submission of an Amicus, we have the international human rights instruments and more specifically the Declaration on the Right and Responsibility of Individuals, Groups and Institutions to promote and protect human rights and fundamental freedoms universally recognized by the United Nations, in which you have that everyone has the right, individually or collectively, to participate in the management of public affairs and,
"This right includes, among other things, that every person, individually or collectively, has the right to submit to the governmental bodies and agencies and organizations concerned with public affairs, criticisms and proposals for improving their functioning and to draw attention any aspect of their work that may hinder or impede the promotion, protection and realization of human rights and fundamental freedoms "(Art. 8).
In any case, each country has its own constitutional provisions that develop as the duty of citizens to promote human rights. For example, in Ecuador, we have Article 83 "The duties and responsibilities of Ecuador and Ecuadorians, notwithstanding others under the Constitution and the law: (...) 5. Respect human rights and fight for their fulfillment "
• If we have extensive knowledge and experience in the subjects discussed in the proceedings.
The idea of an Amicus Curiae is to provide relevant elements to be taken into account by the Courts in respect of the subject they are treating. A superfluous written, insufficiently supported, which deals with different things to be discussed or has no new elements of interpretation of litigation goes against the nature of an amicus and may have the effect of discouraging the Courts to consider them to base their judgments.
Those who litigate in human rights appeal to Amicus with a threefold purpose: to equip the courts with new elements so they will produce jurisprudence in accordance with international law of human rights; to support and accompany the process of law making; and to generate a political impact by showing that the cause of human rights is universal and that the decisions of the judges are seen by everyone and are subject to reasoning tests. The last two objectives do not detract from the rigor of the writing itself, on the contrary, they seek to strengthen the work of judicial officers.
3. Form:
The authorship of the amicus does not have to be necessarily backed by professional or scientific titles. Review the experience you have on the subject, knowledge about the impacts that this or that decision may generate in the social, economic, environmental, etc., is enough. In any case, it is necessary to sufficiently identify the authorship of the document: who is addressing the Court and explain the skills you have.
The rationale should refer to rights, whether those recognized nationally or those included in international law of human rights. Additionally, all sources should be cited so judicial officers can consult if they wish; footnotes with these references are very important.
There is no standard format for the presentation of an Amicus Curiae but there are some guidelines you can follow when you perform an Amicus when we want to suggest to those who wish to accompany the legal process.
The first thing is to identify the Court and the case number (where is it located or its reference) so that the secretary that receipts the document directs it to the appropriate judges, without delay. Then you have to identify yourself as an amici, note that is being appealed to the figure of Amicus Curiae and note the interest that the person has to resort to it.
Then, the arguments should be developed which supports the work of the Court or the Tribunal, incorporating the documents or supporting references and ending up with the specific request, that is that the Court considers the arguments presented at the time of failing and the ruling, consequentially, goes in a particular direction.
*This description of the Amicus Curiae refers to human rights, however, since the Ecuadorian Constitution recognizes Right to Nature, it can also be used in RON cases; considering that there won’t be international legislation to support the Amicus.
[1]Original text: Acción Ecológica; Translation: Natalia Greene, Pachamama, Global Alliance for the Rights of Nature