How to litigate discrimination
When it comes to equality, we still need to turn words into action in Europe. Since 2000, the EU has introduced multiple laws aiming to eliminate racism, yet those experiencing discrmination report little progress. Racism against blacks and Asians, anti-gypsyism and antisemitism, Islamophobia as well as discrimination based on citizenship or disabilities are still hurting the continent. Ministers, Members of the European Parliament (MEPs) and civil society gather at a European Summit for the first time to look for solutions, just two days before the International Day against Racial Discrimination.
The virtual event builds on the new European Anti-racism Action Plan adopted last autumn. It includes the annual designation of the European capital of inclusion and diversity as well as the appointment of a coordinator. The Commission encourages Member States to adopt national action plans against racism by the end of 2022. Companies, public institutions, and NGOs can sign diversity charters to maintain an inclusive work environment for their employees. The initiative also frees up advocacy avenues. The Commission recommends Member States enable strategic litigation at national level. What does this term mean and how can it help NGOs fight discrimination?
Legal services vs strategic litigation
A case can change more than the plaintiff’s life. Traditional legal services usually help a person or group with the main goal of improving their situation. Strategic litigation goes beyond individual needs and considers cases as a tool to spark social change. You often build a narrative of similar stories and involve a coalition of multidisciplinary actors.
The history of strategic litigation goes back to colonial times, when colonial powers appropriated lands illegally, leaving no documentation of original ownership. The litigating communities at that time attempted to demonstrate their prior ownership of the lands and their physical settlement. Strategic litigation today still addresses injustice, changes public perception and influences jurisdiction.
Build an evidence-based case
Going to court comes at a price and requires a robust case. The Australian Federation of Community Legal Centres developed a list of questions to make your life easier, which we summarised in three steps. First, examine the plaintiffs. They should be credible, clear and committed despite possible political and personal backlash. Next, check if a successful legal outcome would really tackle the observed injustice. Get in touch with Human Rights lawyers to answer this question and assess the potential of a case. In case of judicial remedies, finally take a closer look at the law and public opinion to get a first idea of the chances of success.
Linking evidence to law increases the impact of your actions. On 5 June 2008, the European Court of Human Rights issued a decision in the case of Sampanis v. Greece. It involved the State's failure to provide places in schools to Roma children, instead of putting them into segregated facilities. The Court found that the occurrence of certain "incidents of a racist character" affected the authorities' decision to place Roma children in segregated schooling. The Court concluded that Greece had violated Article 14 (prohibition of discrimination) of the European Convention on Human Rights, in conjunction with Article 2 (right to education) of the same protocol.
Each successive judgment strategically removed another brick in the wall of state-sponsored discrimination. Sampanis and Others v. Greece (2008) led to Oršuš and Others v. Croatia (2010), Lavida and Others v. Greece (2013), and Horváth and Kiss v. Hungary (2013). Each victory in court advanced the rights of the six million Romani people in Europe.
Forge a broad coalition
Strategic litigation is a team effort. Amnesty International has done it for over 30 years by bringing legal experts, researchers and campaigners together. Although the NGO has over 2,600 staff, they still join forces with other human rights NGOs for legal disputes.
We saw that in union there is strength in February 2012. The coast guard stopped migrants on the way to Italy and sent them back to Libya without a chance of introducing an asylum request. The Italian government made the case that, since the coast guard intercepted the vessel outside Italian waters, they were only obliged to "rescue" but could return the migrants to their home country. A coalition of Human Rights organisations comprising the office of the United Nations High Commissioner for Refugees, Human Rights Watch and Amnesty International supported 24 Somalian and 13 Eritrean nationals in bringing a case in front of the European Court of Human Rights (ECHR).
The ECHR condemned Italy. The complex judgment found both that, if the Italian coast guard had intercepted the boat and held its passengers, the migrants must be in fact under Italian jurisdiction, and therefore had the right to introduce asylum requests. The judges also ruled that migrants from Somalia and Eritrea were at risk if returned to Libya. This judgment curtailed the policy of stopping boats before they enter EU waters and bolstered the rights of migrants.
Strategic litigation in international courts is as expensive as at a national level. International court fees, protecting witnesses, communication costs and other essential expenses such as traveling can be very high. However, winning an international case impacts many countries. Amnesty International, Trial International, the European Centre for Constitutional and Human Rights (ECCHR) and the European Council on Refugees and Exiles (ECCRE) are some exemplary organisations who come together to support the important cases in the tribunal including costs.
Follow a prescient plan
Strategic litigation often begins with and utilises stare decisis. This common law principle states that courts ought to follow past jurisprudence. Should a judge rule in your favour, celebrate your victory but also take a moment to see if you have set a precedent for others.
Yesh Din witnessed such a butterfly effect. The Israeli NGO succeeded in opposing the violation of Human Rights in occupied Palestinian territory. They started with one case about Israeli settlement on private land in Amona (formerly Al-Mazaria). The Israeli Supreme Court supported the plaintiffs’ points and ruled against the Israeli government. The verdict not only empowered the Palestinian landowner but also strengthened the cause of fellow Palestinians fighting illegal settlements.
A favourable court ruling, however, does not mean the battle is over. The example above upset political figures, some of which tried to ignore and attack the outcome. Right wing member the Knesset, Bezalel Smotrich called on Jewish settlers to attack Palestinians and claimed that the life of a Jew is more important than a Palestinian’s. You should thus always prepare a communication plan that explains how to ensure the ruling is being swiftly enforced if you win as well as how a loss in court can still fuel your campaign for equality. Strategic litigation also aims at empowering the public and engaging the government.
Visual: https://www.youtube.com/watch?v=cBeiyspHvQ8&feature=emb_logo
Three tips to litigate discrimination
Build an evidence-based case clearly linked to the law.
Surround yourself with a multi-disciplinary coalition of champions.
Spark policy changes with a strategy that goes beyond the verdict.
- written by Elif Akyüz, elif[at]thedandeliongroup.eu
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