Strategic Litigation

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Strategic Litigation

• - An Introduction
• Presentation by Sabine Benzing-Balzer
• Public Affairs Centre
• Right to information training for NGOs from
  Bangladesh and Nepal, Kathmandu, 18-21 March 2007

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Content

• What is strategic litigation?
• What are the objectives of strategic litigation?
• Objectives of strategic litigation regarding
  right to information
• What are the advantages of strategic litigation?
• What are the disadvantages of strategic
  litigation?
• Case selection How to find the right case?
• When to bring a strategic litigation case?
• Who should be involved?
• Strategic litigation planning
• - Select a proper jurisdiction and forum
• - Choice of defendant
• - Develop litigation support
• Importance of post-litigation implementation

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What is strategic litigation?

• Strategic litigation is a method or technique
  that falls within the field of public interest
  litigation
• Strategic litigation uses the court system to
  achieve public policy reform, law reform and
  social change through test cases
• In contrast to ordinary litigation the main focus
  is on social justice, rather than on individual
  justice
• Strategic litigation is primarily used by
  non-governmental organisations and private law
  firms engaged in public interest practice.

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What is strategic litigation? cont.

• smart litigation
• to create lasting effects and maximise the impact
  of the case

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Strategic Litigation ltgt Public Interest
Litigation

• Process or way
• Strategic Litigation
• way of brining a public interest
  litigation,
• it includes case seclection, support from
• outside post litigation
  implementation

Public Interest Litigation Def. Litigation for
the protection of public interest
Strategic Litigation way of brining a public
interest litigation, it includes case selection,
support from Outside, post-litigation
implementation
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What are the objectives of strategic litigation?

• Law reform

Social change
Policy reform
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What are objectives of strategic litigation?
cont.

• Law reform
• To support the rule of law
• Law reform in the light of human rights standards
• e.g. to identify gaps in the domestic law
• to change laws or policies that violate
  constitutional provisions, international human
  rights instruments and regional human rights
  standards
• Stabilisation or clarification of the legal
  system or its laws
• e.g. to ensure that laws are interpreted and
  enforced properly
• To document institutionalised injustice
• To educate the judiciary and legal profession

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What are the objectives of strategic litigation?
cont.

• Policy reform
• To foster political discussion and change in
  culture of civil service
• To promote government accountability
• Social change
• To raise awareness of right to information and
  its potential in public
• To empower marginalised groups

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Objectives of strategic litigation in the field
of right to information

• When states have a constitutional provision which
  covers the right to information, but no
  procedural right to information law
• - identify cases falling within the scope of the
  constitutional right
• - develop litigation strategies to show the
  necessity for an additional
• procedural right to information
• When states have enacted a right to information
  law in an incomplete manner
• - develop strategies to force legislation in
  uncovered areas
• When states have enacted a right to information
  law in a manner that does not provide legal
  certainty
• - develop litigation strategies to ensure that
  laws are interpreted and
• enforced properly

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Objectives of strategic litigation in the field
of right to information

• Brainstorm
• Social change ???
• Political change ???

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What are the advantages of strategic litigation?

• A single case can have extensive legal and
  political effects
• Strategic litigation establishes legal precedent
  that benefits future claimants.
• (This is particularly relevant in common law
  jurisdictions where stare decisis, i.e. legal
  precedent, is the rule)
• It broadens access to justice
• It tests and clarifies the content of existing
  laws, thus furthering government accountability
  by establishing parameters within which the
  government must operate
• In many cases (particularly for group claims
  through class action or similar procedures) it
  can be a cost-effective instrument of raising an
  issue or having genuine political effect

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What are the disadvantages of strategic
litigation?

• Disadvantages for the individual claimant
• There may be no judgment below that of the
  highest available court that is fully
  satisfactory
• Settlement out of court is no option
• Court-ordered change vs. negotiated political
  agreement
• Litigation does not necessarily reflect public
  opinion and may achieve a result that has no
  public support. In this case the objectives may
  be more properly achieved through debate in the
  political system rather than judicial decision
• It is rare for the success or failure of an
  advocacy campaign to focus on a single case or
  decision, hence a negative result may reaffirm an
  unfavorable law practice. A comprehensive
  strategic litigation approach which integrates
  advocacy is necessary
• By its very nature the outcome of any litigation
  can rarely be assured.
• A trail and error approach is essential,
  involving the use of multiple claimants and fora
  and the refinement and modification of the
  strategy until success is achieved
• Where legal protection and enforcement are weak,
  strategic litigation may not achieve the desired
  impact

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Case selection How to find the right case

• NGO or public interest organisation decides
• what issues it wants to address
• what groups it wants to address
• NGO identifies issues for strategic litigation
• Compliance with international standards
• Clarification of existing law
• Enforcement and application of existing law
• NGO or public interest organisation advertises
  for and selects cases to advance a particular
  objective

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When to bring a strategic litigation case

• There is a legal issue which relates to a broader
  social problem
• Decision will have broad effect
• Courts are independent, sympathetic and respected
• Issues can be easily understood by public or
  media
• Potential media coverage

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Other practical considerations

• Resources are available to fund case
• A sympathetic complainant who has standing can be
  found
• Good experts are available

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Who should be involved?
Courts
Claimant
Defendant
NGOs
Legal adviser
Experts Amicus curiae
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Strategic litigation planning

• Define the litigation goal
• Select the proper jurisdiction and forum
• Choose the right defendant
• Cooperate with NGOs, specialised legal resource
  centres, use outside experts and analysis

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Select the proper jurisdiction and forum

• Important selection criteria
• Primary criteria Does the relevant national or
  international law permit a complaint to the
  chosen forum on the facts of the case
• Assessment of potential impact Will sucess in
  the chosen forum have widespread effect or just
  limited local effect
• Previous judgements and decisions What is each
  courts record in dealing with this type of case?
  Do previous decisions indicate a favourable
  disposition towards a particular issue

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Select the proper jurisdiction and forum cont.

• Applicable laws What law or standard will be
  applied by the chosen forum. Can you use
  international law in domestic proceedings?
• Choice of remedies If the goal of the litigation
  requires a particular type of remedy, this will
  determine the type of procedure and court
• Civil remedies
• Criminal actions
• Procedural criteria
• Legal costs
• Time limits
• Rules of standing
• Rules of evidence

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Choice of defendant

• The defendant must be choosen based on the
  substance of the relevant laws, the procedural
  requirements of the case, the liklihood of sucess
  and the potential impact of a positive decision
• Possible defendants
• The national government
• Lower levels of government
• Corporations
• Individual defendant

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Litigation support through cooperation

• Develop litigation support through
• Other NGOs
• Amici curia
• Expert knowledge, research
• National human rights institutions
• Publicity and public support
• Media
• Politicians

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Importance of post-litigation implementation

• The impact of strategic litigation is heavily
  dependent on the follow-up-strategy
• Example of an effective follow-up strategie
• National advocacy
• International advocacy
• Publication of country specific or issue specific
  reports

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Case Study Inter American Court of Human
Rights Marcel Claude Reyes et al vs. Chile

• This case of denial of an information request
  regarding the approval of a major logging project
  known as the Condor River project was brought
  before the Inter-American Court of Human Rights
  as a strategic litigation case supported by the
  Open Society Justice Initiative, Article 19,
  Libertad de Información Mexico, Instituto Prensa
  Y Sociedad and Access Info Europe.
• On 9th October 2006, the Inter-American Court of
  Human Rights explicitely recognised the right to
  general access to government held information,
  holding that Chile had violated Article 13 of the
  American Convention on Human Rights by not
  providing the requested information regarding a
  logging project to the applicants.

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Judgement of Claude Reyes et al vs.Chile

• In the judgment of Claude Reyes et al vs. Chile,
  the Court ordered Chile
• to establish an effective legal mechanism that
  guarantees the right of all persons to request
  and receive information held by government
  bodies, including defining limited exemptions to
  the right and setting deadlines for providing
  information.
• to prove that in setting restrictions on access
  to information in its possession it complied with
  the restrictions laid out by the Court.
• The burden of proof is upon the State.
• To provide training for public officials on the
  right to information