Challenges, objectives, advantages and disadvantages

of strategic litigationin the country of transformation

Adam BodnarHelsinki Foundation for Human Rights

Dębe near Warsaw, 30 May 2008

What is strategic litigation?

making significant changes in law, legal practice, public awareness or social practice through litigation of carefully selected cases

affects number of persons, sets a standard, changes the point of view impact litigation public interest litigation test cases – how legal system works

Different dimensions of strategic litigation

areas: human rights, counteracting corruption, domestic violance, environmental protection, access to information, social rights, artistic freedom

actors: domestic and international NGOs, mainstream and specialized NGOs, law firms, bar associations, coalitions, individual fighters

arenas: local, regional, national, international sponsors: grant organizations, law firms, bar

associations, own funds of NGO, business, specialized organizations (e.g. MDAC)

History

common law countries and doctrine of precedent

NAACP, American Civil Liberties Union and many other NGOs

European perspective: - domestic NGOs (e.g. Yonko Grozev and

Bulgarian Helsinki Committee) - international specialized NGOs (e.g.

European Roma Rights Centre, Mental Disability Advocacy Center)

- international strategic litigation NGOs (e.g. Interight, Open Society Justice Initiative)

Strategic litigation in country of transformation

transformation in Poland – started 1989 strong role of Ombudsman (Ombudswoman) principle of ping pong – courts should have

opportunity to give good judgments Polish Constitution in 1989 – as „menu in the

Soviet restaurant” no strategic litigation for number of years

(paradox of HFHR) a lot of lost chances for good judgments (e.g.

length of proceedings in ECHR) strategic litigation – helpful in times of crisis

– 2005 – 2007 (e.g. changing role of ombudsman)

CEE countries' perspective

problems do exist possibility for strong cooperation (similar

structural problems) perspective for sponsors (strategic litigation

is one of priorities for sponsors) BUT: strategic litigation is only one of

instruments to enhance human rights protection (others: education, advocacy, watch dogs)

INDEPENDENT AND IMPARTIAL COURTS: crucial to the success

independence and courage of lawyers professionalism

Advantages of strategic litigation

effect of scale (with one case you may resolve the whole problem)

different additional functions (raising awareness, education on rights, involvement of civil society)

it will not replace legislative reforms but may speed them up

elimination of unjust loopholes in the legal system

best education for human rights lawyers domestic courts are usually not prepared for

purely legal, professional argumentation

Disadvantages of strategic litigation

public interest vs. individual interest strategic litigation needs a public interest

organization – problems with funding continental law system (partially efficient) –

therefore clear identification of objectives sometimes it is difficult to combine strategic

litigation with other NGOs' activities problems with selection of cases problems with finding good cases time constraints

Approach of domestic courts to strategic litigation

resistance and fear („alien” element) – treating NGOs even as enemies

breaching the routine of daily practice (usually with good results)

understanding the objectives of NGOs strengthening courts (e.g. lustration case

and the role of amicus curiae) – in view of political attacks

courts should know NGOs are doing strategic litigation for the public interest – it is also their interest (at some point they will realize it)

Important role of the ECHR

most fundamental: remedy for victims diplomatic responsibility (enforcement

mechanism) BUT LATER ON (after couple of years)

impact on domestic practices (e.g. Polish courts, Supreme Court in Mandugequi case)

reliance on ECHR standards in jurisprudence (e.g. in free speech cases)

ECHR – impact on changes in law (e.g. Broniowski v. Poland, Tysiac v. Poland)

dialogue between Con. Court and ECHR cases and standards: seeds to grow later

Strategic litigation and other public interest actions

often case does not remedy a problem (it may help)

legislative action may be needed case takes time: direct intervention may be

quicker and more effective case is only an example – you should know

before where to look – importance of monitoring and „talking to people”

how to explain you take only ONE case – especially after a success

matter of cooperation and coordination

Media and strategic litigation

NGOs – responsibility for informing and educating on human rights' standards (or other in the field)

WHY: to inform the public, to raise awareness, to educate people on rights, to teach lawyers

HOW: website, press releases, publishing own articles, press briefings, comments in media, making friendships

WHEN: every major procedural step, every important judgment (even not in „our” case), sending topics to journalists

WHAT FOR: human rights should be constantly in media – result: number of applications grows

Is strategic litigation worthy effort?

Answer

Poland: despite 18 years of transformation – we have still systemic problems

human rights – never ending story real contribution to rule of law and human

rights most efficient method to involve practitioners ECHR, constitutional courts and new

challenges to law – importance of precedent judgments

building respect of all legal professions and courts

you think strategically, but you help individually – personal satisfaction

Thank you for attention

Adam BodnarHead of Legal Programs

Member of the BoardHelsinki Foundation for Human Rightsul. Zgoda 11, 00-018 Warsaw, Poland

www.hfhr.org.pltel. + 48 22 556 4467, fax. + 48 22 556 4475

e-mail: a.bodnar@hfhr.org.pl