What is strategic litigation and why is it important?
Strategic litigation is an important aspect of refugee protection and, indeed, for human rights protection generally, whereby cases are taken with a specific aim of benefitting as many people as possible by bringing about a change in the law and/or its implementation in practice. Of course, even using the term ‘strategy’ gives the impression that there is a set list of criteria that a case can meet to become strategic and while it may be true that there are criteria that can attach to a case that will, if successful, have a strategic benefit, such criteria are hard to explain and apply to every case.
In a blog piece for the European Roma Rights Centre, Adam Weiss likens strategic litigation to Nassim Nicholas Taleb’s Black Swan, ‘first it is an outlier, as it lies outside the realm of regular expectations, because nothing in the past can point to its possibility. Second, it carries an extreme impact … Third, in spite of its outlier status, human nature makes us concoct explanations for its occurrence after the fact, making it explainable and predictable.’
In other words, lawyers and policy-makers try to explain why certain cases came about and then try to categorise future, potential cases on that basis. While it is possible to an extent to attempt to identify cases as strategic and non-strategic, the spectrum of variables involved is broad and by no means stationary – i.e. there is no set formula, just factors to consider and some are more predictable than others. For instance, when speaking of unpredictable factors, there are internal factors to consider, for example, one might assess the number of helpful and unhelpful facts in a case, or consider the constraints on the lawyer involved (experience, work load, and even skill) and the resources available. Additionally, there are also external unpredictable factors one might consider, such as the particular judge or composition of the court, or the capabilities of counsel for the opposing side. Costs and the urgency of the matter are other factors that the lawyer also has to take into account when mounting legal challenges.
Within the domain of asylum law, the venue has become more and more important as a factor in over the past number of years, particularly with the Europeanisation of refugee law. Cases taken to the European courts (the CJEU and ECtHR) have a transnational reach that may have a greater strategic value. A good example of this is the impact of the CJEU’s judgment in Case C-411/10 and C-493/10, Joined Cases of N.S. v. United Kingdom and M.E. v. Ireland, 21 December 2011, which held that returns to Greece under the Dublin Regulation were impermissible due to reception conditions there. This had the effect of suspending Dublin transfers to Greece across the other EU Member States. The importance of the venue is underscored by the fact that had this been the holding of a national court, then it wouldn’t have had such a far-reaching or continental impact (See also, the preceding case of MSS v. Greece and Belgium, Application no. 30696/09).
One of the most important factors is, of course, the lawyer. While it is possible that some cases become strategic by accident, the vast majority of strategic cases that I have seen taken come about because the lawyer has the ability to spot the strategic issue in a case and take it forward in a way that obtains the desired result. This is often brought about by providing informal legal support as well as enlisting the assistance and help of other lawyers and this is something that ECRE and the ELENA Network seek to foster throughout Europe, where networking, training, and knowledge-based information sharing are vital aspects of our work.
Of course, not all cases can or need to be strategic and it is important to remember that a lot of litigation is taken on behalf of individual clients, seeking individual relief and while such cases may not have ‘strategic value’, they are important to the individuals concerned. These cases cannot be ignored in the search for the alluding strategic case – it goes without saying that the needs of the client come first for any lawyer. A lawyer owes a duty to his or her client to act in their best interests and to provide a proper standard of service.
In the end there is a balance to be struck between strategic and non-strategic litigation – to only concentrate on strategic cases will not cover all cases where individual rights are violated and to only concentrate on non-strategic cases will mean that resources won’t be available to take cases to higher courts where there will be a wider benefit. Not all cases can be strategic but there is still a need for both types of litigation in the protection of refugees’ rights.
Involvement in Strategic Litigation by European Refugee Rights’ Organisations
Engaging in cases with more strategic value at a European level differs from litigation at a national level. As discussed, cases at this level have a wider impact and have the capacity to change law, policy and practice across the continent in one fell swoop. Taking cases to the European or even international mechanisms requires much more capacity on behalf of a lawyer, who will generally have other clients and national proceedings to continue. It is therefore most important that support is available to such lawyers.
In terms of the differences with the more general issues I discussed earlier, there are some specific points to note. Organisations that are involved in strategic litigation at a European level often do not represent clients individually (which makes decisions on the strategic ‘value’ of cases much easier to make). However, such organisations are very reliant on funding to obtain resources and while this in no way bears down on the positions taken in cases, it means that organisations have to be strategic with their resources, and as a result, which cases they choose to become involved in.
Moreover, the type of work that organisations do is also not entirely similar to the work of local lawyers with their own client case load. Organisations may offer support in many different forms that can be either formal or informal. Litigation support, which encompasses a broad range of tools such as pan-European research and sourcing expert opinions, is often provided to lawyers by organisations. This can involve the provision of expert opinions or training/capacity building sessions. For more direct involvement in cases, third party interventions are becoming more frequently used before the ECtHR. In terms of general support, networking, information sharing and discussion of receptive court fora to the arguments advanced is playing a more prominent role in Europe.
The aim of such organisations, therefore, appears to be the provision of capacity to lawyers to enable them to take cases to the European or international level that have strategic ‘value’ and the capacity to change law, policy and practice.
The work of the European Roma Rights Centre (ERRC) is a good example of holistic engagement in strategic litigation at a domestic, European and international level – the ERRC focuses on equality and anti-discrimination for Roma in Europe. Support for lawyers in domestic proceedings, substantive and procedural legal training and preparation of legal submissions to European and international bodies, amongst others, are core components of their strategic litigation work. Indeed, figures from their website show that European cases make up around 25% of the total number and most of those are before the ECtHR where they intervene as a third party to the proceedings.
The AIRE Centre is another good example of an organisation which capitalises upon a range of different tools to engage in strategic litigation before domestic and European courts. The AIRE Centre works on a broad range of human rights issues, including refugee protection. It is an organisation hybrid in nature since it is able to directly represent applicants; it provides free legal advice to lawyers or to individuals; and intervenes as a third party before the ECtHR and CJEU.
ECRE’s strategic litigation focuses on supporting lawyers taking strategic cases. We coordinate the ELENA Network, a network of over 500 lawyers across Europe as well as EDAL with an aim of supporting lawyers and fostering information sharing of case law. By supporting lawyers and not representing individual clients, we can more easily make decisions of a strategic nature regarding the cases we come across. The aim of the litigation team at ECRE is to support cases that are most likely to achieve positive change in law and practice throughout Europe.
Strategic litigation is an inexact science, with any approach based entirely on an individual case at hand. Succeeding in taking strategic cases involves an intelligent and flexible approach by lawyers, taking into account the multiple factors that can affect the outcome. However, the client’s best interests must come first and lawyers have a duty of diligence to all clients equally. The role of organisations such as the AIRE Centre, ERRC and ECRE allow lawyers to take strategic cases to the European level through various support mechanisms, while upholding the client’s best interests.
Collaboration and sharing is certainly key to the success of strategic litigation, especially since refugee law is more and more ‘Europeanised’. It can have a direct effect on amending legislation, policy and practice at a European level, which in turn is the trigger to effect change for people seeking protection in Europe.
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(This journal entry is an expression of the author’s own views, and not necessarily those of EDAL or ECRE)