Human Rights Strategic Litigation
What is strategic litigation?
• litigation, which aims to reach behind the
individual case and client to achieve change in
the society through law and judicial system
• deliberate, planned conduct of legal proceedings
aimed at changing the interpretation of an
existing law, elimination bad legal provisions from
system of laws (unconstitutional, inconsistent
with ratified international treaties) or to obtain
financial compensation caused by functioning of
state institutions (cases of unlawful detention) or
criminal persecution of state functionaries
Aims of strategic litigation
• courts redefine or substantiate rights to better
address the wrong doing of government or
society or apply existing rules, which are under
underutilized or not being used
• often raise awareness about the issue among the
general public , which can lead to demands of the
public for legal/social change
• intend to promote public legal awareness,
knowledge about the law and human rights
among the potential victims
Why to engage in strategic litigation
• strong tool for achieving systemic change through
the power of judiciary
• enforcing existing laws and regulations
• can lead to reform of public institutions (for
children, prisoners, mentally impaired)
• empower disadvantaged groups
• prevent a project from going forward
(construction of hazardous waste, disposal site)
• mobilize citizens
• raises awareness and educate
How to determine whether to choose
strategic litigation over other methods
• single case of strategic litigation often does not lead to
success or failure, litigation one element of broader
strategy for legal or social change
• there is a law, which is not applied
• application of certain law by government is arbitrary,
inconsistent,
• law or measures of the government restrict human rights
or individual freedoms
• There are international standards, which could be used
• what could be a negative impact of the unsuccessful
litigation on worsening the problem
• what resources are needed (human, financial, time)
How to develop a case
• Define a litigation goal (developing a list of possible outcomes of
the case, including favorable, unfavorable and partially favorable
results)
• Choose a right legal strategy including right defendant and proper
forum (substantive legal question, procedural aspects of the
alternatives, likely-hood of success of the alternatives, potential
impact of the positive decision, costs of the unsuccessful litigation,
jurisprudence of different courts might differ, using supreme and
constitutional courts)
• Use creative legal arguments , use constitutional and international
law, use jurisprudence, use regional and international courts
• Educate the court
• Use expert advise and analysis and cooperate with CSOs (amicus
briefs)
Effects of strategic litigation
• Enforcing the law, to compel governmental bodies to fulfill their
duties
• Applying and interpreting the law (especially decision of supreme
and constitutional courts, ECHR may affect practices in several
countries, may lead to change of legislation)
• Public institutions reform (mental health institutions, schools, child
care institutions)
• EXAMPLES: special classes for Roma children (Slovakia), using
restraint measure in mental-health institutions)
• Inspiring social, political, legal change (even if litigation is
unsuccessful might lead to change of the public opinion or at least
public discussion, which can lead to change in policy, can lead to
revealing important information during proceeding)
Strategic litigation versus interests of
the client
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ethical concerns,
publicity, interference with privacy,
pressure from the government,
isolation from the community,
best relationship with the client when client understands the
importance of the case and his legal responsibilities
• The organization should assist, protect and support the client –
ethical obligation, might render the client uncooperative or cause
withdrawal from the case
– Public expression of support and understanding for the client and the
cause
– Raising awareness in the community
– Assisting with public and media relations for the client
– Maintaining frequent contact with the client (family)
Litigation as part of advocacy campaign
• Even unsuccessfull litigation can lead to positive
change – raising public awareness leading to
change of policy
• Even successful litigation does not need to lead to
positive change if it is not accompanied by other
strategies or the impact of the court victory might
be lessened or delayed if not accompanied by
other strategies
• Follow-up required (paper victories, little-long
term victories)
V.C. v Slovakia
• What were the domestic remedies sought by
the applicant?
• What evidence was used to support
applicant’s claim?
• Was any expert opinion used in the case and if
yes what role played?
• Was the strategic litigation fully successful?
• What kind of difficulties to the interest of
client might arise in the case?
Examples of strategic litigation
• D.H. v Czech Republic
• Walla a Wallová v. Czech Republic