Human Rights Strategic Litigation

1. Human Rights Strategic Litigation

2. 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

3. 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

4. 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

5. 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 areinternational 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)

6. 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)

7. 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)

8. Strategic litigation versus interests of the client • 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)

9. 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)

10. 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?

11. Examples of strategic litigation • D.H. v Czech Republic • Walla a Wallová v. Czech Republic