Tbilisi, 3 November Conference Implementation of the European Case-law in the Domestic Setting
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1 Challenges, objectives, advantages and disadvantages of strategic litigation in the country of transformation - - on the basis of experience of the Polish HFHR Adam Bodnar, Ph.D., LL.M. Head of the Strategic Litigation Program Polish Helsinki Foundation for Human Rights Tbilisi, 3 November 2007 Conference Implementation of the European Case-law in the Domestic Setting
2 Basic information on HFHR and the Strategic Litigation Program Helsinki Foundation for Human Rights started in 1989: education law in the public interest Strategic Litigation Program started - November 2004 (now 100 strategic cases, over 40 judgments) our objective is to make significant changes in law or legal practice through litigation of the carefully selected cases cases - examples of systematic violations prof. Wiktor Osiatyński - The Strategic Litigation Program is the missing link of the Polish democratic society
3 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 (e.g. changing role of ombudsman)
4 Georgia beginning of transformation you can do it better and faster than Poland strong support from other countries in terms of instruments, education and cooperation support by international institutions aid in resolving systemic problems 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
5 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 injust loopholes in the legal system best education for human rights lawyers domestic courts are usually not prepared for purely legal, professional argumentation
6 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 it is difficult to combine strategic litigation with other NGOs' activities problems with selection of cases problems with finding good cases time constraints
7 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)
8 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
9 Methods media, strategic litigation and ECHR NGOs responsibility for informing and educating on ECHR standards 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 and ECHR should be constantly in media result: number of applications grows
10 Methods strategic litigation and ECHR in domestic setting weekly review of all judgments and communicated cases practice of amicus curiae briefs (HFHR started in 2005 now 13 briefs to ECHR) amicus curiae briefs before domestic courts (with ECHR and ICCPR standards) monitoring of steps taken by the Government following the judgment letters of intervention, asking for review of practice, for providing public information preparing legislation to enforce a judgment (if needed, e.g. Bączkowski v. Poland) observing other countries and their legal problems similar problems in Georgia?
11 Methods lawyers cooperation growing volume of cases rule of law and human rights responsibility of legal professionals competition Best European judge pro bono legal aid and legal clinics seek legal aid in international law firms (via pro bono counsels or Public Interest Law Initiative if pro bono taking case seriously major problem in strategic litigation one has to coordinate and to set the strategy role of NGOs
12 Is strategic litigation worthy effort?
13 Answer Poland: despite 18 years of transformation we have still systemic problems as Georgia 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 societal challenges to law importance of precedent judgments HFHR following years of crisis has respect of all legal professions and courts you think strategically, but you help individually personal satisfaction
14 Thank you for attention Adam Bodnar, Ph.D., LL.M. Head of the Strategic Litigation Program Helsinki Foundation for Human Rights ul. Zgoda 11, Warsaw, Poland tel , fax a.bodnar@hfhr.org.pl
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