Creative human rights litigation
The United States can be proud of a series of historic anti-discrimination rulings of their Supreme Court, to name but the famous Brown v. Board of Education of 1954. As a result, the potential to bring about substantive law reform and achieve social change through litigation in that country is virtually undisputed. This is not the case, however, in most European countries. The continental legal doctrine knows no binding precedent rule (at least not in the common law meaning of this concept); and binding precedent is arguably central to the ability to use litigation as an effective tool for combating discrimination in a society.
Nevertheless, Europe has seen one significant and hopeful development in recent years. In a growing number of instances, judgements of the European Court of Human Rights have triggered-off domestic law reform. The United Kingdom, Belgium, the Netherlands, France, Spain, Italy, Greece and Turkey are among the countries that have amended their laws following judgements in the last few years. In some instances the mere fact that a case has been referred to the Strasbourg Court has been enough to initiate positive change. These developments should become an incentive for all European lawyers. Lawyers in Europe are now in a better position to push for the implementation of international human rights standards in domestic human rights litigation. Now lawyers know that even if local courts are not impressed by their arguments, the same arguments may well be seen differently by the European Court of Human Rights in Strasbourg.
In view of the above, it becomes important even at the stage of domestic litigation to bear in mind the possibility of continuing the case before the Strasbourg Court or other international legal fora. This consideration should influence both the legal strategy employed and the ways of documenting the human rights violations in question. Here the strategies used in a number of major US human rights cases can be very relevant. The best example is McCleskey v. Kemp (481 U.S. 279/1987), in which statistical evidence was used to document discrimination.
There is relevant experience in Europe itself: the new democracies in the East could learn from West European countries with tradition in human rights litigation. But the American and West-European examples should be used as provocations rather than as blueprints. Lawyers in countries that are part to the European process should be able to show initiative and be creative in their own right in arguing their clients' cases. Being creative in this context entails changing the way law is thought about in most European post-communist societies. Regrettably, there are still many such lawyers who, when alerted to human rights violations, would at least initially focus on the obstacles in providing redress to victims rather than on ways of overcoming them. For the majority of post-communist lawyers human rights abuse is still a problem rather than an opportunity. Of course, this approach is understandable in historical terms; it is also buttressed by the fact that domestic courts usually still show that they do not understand and are not interested in the international human rights standards, even though their country has de jure accepted them. All this should not be an excuse not to try, and try again, and be persistent and persevering. If lawyers working on human rights cases do not lead the way to effective litigation, no one else will.
The international experience shows the importance of this kind of novel, creative litigation. It prods the legal system to enforce existing laws which are traditionally not enforced; it articulates new legal principles based on international and comparative law standards; it can eventually initiate law reform. Besides, creative human rights litigation re-educates judges and prosecutors: initially, they just become more accustomed to arguments based on international and comparative law — and finally start implementing international human rights standards themselves. Most importantly, however, creative litigation, with the international human rights legal fora in view, is a tool of transforming the special and most precarious situation of Roma in post-communist Europe.