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Contributing to make justice fairer: strategic litigation

Strategic litigations bring very specific cases to courts of law which can end up changing legislation

A pregnant woman was assaulted by two men a year and a half ago in Barcelona. Barcelona City Council itself became involved in the legal proceedings, to defend not its own interests but legality.

The City Council became “party to the proceedings as a prosecution brought on behalf of the people and separately from the State”; that is, a legal action that is normally carried out by associations, collectives or political parties. We may consider it an example of local-scale strategical litigation.

The assailants were two neo-Nazi men who belonged to the far-right White and Blue Brigades, and already had criminal records. They began insulting the victim on Carrer Princesa de Ciutat Vella at around 10 pm shouting out “Fucking Muslims, what are you doing here, go back to the desert”, as well as “shitty Arabs“, and “you’re wearing a rubbish bag“, referring to her clothing. The woman had been walking by peacefully, with her husband and two children. Having shoved her husband when he reacted to their insults they then kicked the woman, despite her being pregnant, while her children were protected by a woman who witnessed the assault.

The Deputy Mayor himself, Jaume Asens, opened the people’s prosecution case and activated the proceedings against the assault, which was ruled to have constituted hate crimes and discrimination. The judgment stated: a ruling has been reached that is not just relief for the victim and her family but which also constitutes a preventive message aimed at all citizens to make sure no such events ever occur again.

In other words, the case is important not just in itself but in its wider implications.

What is Strategic Litigition?

Litigation simply means a dispute taken before a court of law: it involves a confrontation between at least two parties or people with different interests.  Two or more parties face one another arguing from several positions. It is, more precisely, legally speaking: a conflict of interests qualified and raised to a jurisdictional authority, by a natural or legal person.

Litigation is not exactly the same thing as a judicial process: the latter attempts to resolve a case by applying legislation, in other words, by resorting to legal documents. This is, in a more legal way: people can exercise their right of action and jurisdictional bodies fulfil their duty to offer an effective remedy.

Of course, strategic litigation, more specifically, aims to bring about changes in legislation or public policies beyond the judicial ruling, very often in matters somehow connected to human rights. In other words, it is a litigation with a specific purpose. In particular, it is when a very specific case is chosen which may have a high impact, given that, for various reasons, it affects many individuals or groups (people deprived of freedom, women, racialised people etc.) The intention is to achieve an impact with the specific case so that it ends up changing a regulatory framework: this may be to strengthen a point of legislation, cause a change in legislation or question whether legislation protects non-discrimination rights. Which is why it is also called impact or public-interest litigation.

A historical case

We can understand better what strategic litigation is with a specific representative case, and, in fact, one of the first to be considered such It took place back in 1772, in an English court, where it had an effect on the legal situation over slavery and ensured its abolition. It is known as “Somerset v Stewart”, the Somerset being a slave regarded as chattel belonging to the Stewart, a planter. The latter took the former from the United States to England, where he escaped. He captured him and planned to take him to Jamaica to be sold.

It was the abolitionist lawyer Granville Sharp who spotted the opportunity to bring a test case before the courts over the English law’s contradictory views on slavery. His case before the judge, Lord Mansfield, was that condemning the slave to go back was tantamount to restoring unaccepted practices such as domestic slavery. The judge reluctantly freed the slave. Sharp found no argument in “natural law” to consider Somerset a piece of chattel, as it was only acceptable for him to be treated as a person. Slavery had never been authorised by the State in England and Wales.

This legal action, which may be considered one of the first strategic litigations, resulted in launching the anti-slavery movement in North America among abolitionists and judges. Sharp exploited that to create a pressure group, the Society for Effecting the Abolition of the Slave Trade, in 1787. It ended up created a series of slow and piecemeal legislative successes that culminated in an Act that abolished slavery throughout British territory in 1833.

Advantages and risks

When an entity decides to go ahead with a strategic litigation it has to take account of certain aspects, whether it is a private or public body or a political party. It has to assess in particular whether the goal is very clear and achievable, whether it has sufficient capacities and whether it has sufficient expertise in the matter. It must also make a thorough calculation of the specific case it is taking to court, whether it has any possibilities of winning and whether there is sufficient public debate enabling the case to have a impact and bring about a change.

A proper calculation of these issues may be key to establishing precedents for legal changes. In addition, it may have a significant impact on not just public opinion but even the mass media.

Of course, strategic litigation is not completely certain or predictable and does on its own not guarantee the success of its results. If all that is not properly calculated, budget- and resource-related issues may prevent it from having any significant consequences. In the worst case scenario, it may lead to negative publicity, both for the case brought to the courts and for the entity involved and its cause.

A current case

SOS Racisme, for example, informed us of a strategic litigation case, that of Zeshan Muhammad, in 2016: a Catalan citizen of Pakistani origin with a long-term residence permit, a resident of Santa Coloma (Barcelona), was stopped by National Police officers in Barcelona on 29 May 2013. His skin colour made him a suspect of living in the State without having his papers in order. During his arrest the police officer admitted that the reason for detaining him was “because he was black, full stop!”.

The Spanish Constitutional Court dismissed the case brought before it as irrelevant and constituting no infringement of any constitutional guarantee. SOS Racisme, however, believed that: stopping a person merely because of the colour of their skin, what is known as an “ethnic profile”, violates the principle of non-discrimination set out in the Spanish Constitution (Art. 14), the right to dignity (Art. 10) and the right to honour (Art. 18), besides numerous international treaties ratified by the Spanish State. This decision of the Spanish High Court is enormously far from the position adopted in other European countries.

 SOS racisme therefore took the Spanish State before the European Court of Human Rights in Strasbourg with the aim not just of seeking a legal solution for the victim but also of putting an end to this discriminatory police practice which the Spanish Constitutional Court continues to provide legal cover for”.

Local Governments vis-a-vis strategic litigation

Two recent cases that may be mentioned on the role of city councils here. In the first place, in 2018, the case of an Islamophobic assault on a woman worker in the City Council’s service, more specifically, a translator, a case that is currently still in process. A woman user of the social services assaulted and insulted the Pakistani interpreter believing she was a user and stating how she was fed up that aid was being given to foreigners and not to Spanish nationals. The City Council lodged a people’s prosecution against the woman for her hate crime.

Barcelona City Council has also been bringing a people’s case against the police abuses of 1 October 2017 which led to 297 people being injured. As a result of the abuses in question, free legal advice and counselling were made available to the victims through the Office for Non-Discrimination from the very night of 1 October to the 20 October. A year after the events, which consisted in interventions from the National Police in 27 of the city’s voting centres, 10 cases remain open and 12 have been dismissed, against which appeals have been lodged. Work carried out through the people’s prosecution has helped to identify 63 police officers committing allegedly criminal actions, 24 of which have been declared to be under investigation.

Strategic-litigation cases are usually initiated by civil-society organisations or even by political parties or unions. The last few years, however, have seen the role of local governments being considered in strategic litigation, understood within their local political action. Municipalities, besides implementing public policies, can act as a mouthpiece for city residents, local diversity and even neighbourhoods. They can detect what in legislation may go against the principles of non-discrimination, or what is deemed necessary to transform justice so it is at the service of citizens’ rights. That means local councils may bring people’s prosecutions, which is precisely what Barcelona City Council has done.

Content produced by the Human Resources Centre


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