Equality through European courts
Strategic litigation – what does ILGA-Europe mean?
Strategic litigation is the use of court cases as part of a strategy to achieve broader legal and social change. Strategic cases may be settled in the national courts, or, failing that, go to regional or international courts.
In the case of ILGA-Europe, strategic litigation is about using European courts to advance the rights of LGBTI people, usually as part of a wider advocacy campaign. The use of European courts to ensure full recognition and implementation of human rights for everyone – irrespective of their sexual orientation, gender identity or sex characteristics – is one of the working methods of ILGA-Europe to achieve full equality for LGBTI people in Europe.
A successful strategic case can bring about a change in the law, or how it is interpreted or enforced, that benefits many, if not all, LGBTI people in the country, or even across Europe. For instance, strategic litigation can be about failure by the police to investigate hate crimes against LGBTI people, about refusal by the State to give legal recognition to same-sex couples or similar rights to LGBTI families or about sterilisation requirements for trans people.
A successful case can also contribute much to wider advocacy work. It can lead to a lot of publicity about the situation of LGBTI people in your country, generate political and public debate, and bring your organisation increased support from the LGBTI community as well as from other progressive groups in your country.
Successful cases, particularly those at the European level, can also be influential in the way similar provisions are interpreted in both national and international laws in other regions.
At this point, it might also be useful to talk about what strategic litigation is not. It is not an easy option and it is certainly not a quick fix. Opting to go down the legal route to secure equal rights can be a complicated, stressful and sometimes costly procedure for those involved. While the positive ‘ripple effect’ that can be caused by a successful strategic litigation case is incredibly encouraging and appealing, it is vital to note that victorious court actions are not always sufficient to achieve practical change where it matters most – on the ground, in people’s daily lives. Change does not automatically flow from the steps of the courts. This is why wider and sustained advocacy campaigns are often needed to support implementation of a case, and why it is important for ILGA-Europe and our members to engage in ongoing monitoring work so that we can hold reneging governments to account.
What does ILGA-Europe do in relation to strategic litigation?
Our long-term goal is to achieve legal changes for LGBTI people at European and national level through a proactive, coordinated and needs-based litigation programme. This is done by:
- Identifying gaps in human rights protection at European level, and encouraging member organisations and others to bring forward cases aimed at closing those gaps.
- Enhancing the knowledge and capacity of LGBTI activists and groups to engage in litigation. This is a precondition to the use of courts to get recognition of rights, to seek redress for rights violations or to change laws and practices at national and European level. It is a core objective for ILGA-Europe to enable LGBTI activists and groups to engage in strategic litigation, and this is carried out through seminars and coaching for organisations interested in getting involved in strategic litigation. [link]
- Supporting strategic cases before the European Court of Human Rights (Council of Europe) in Strasbourg and the Court of Justice of the European Union (EU law) based in Luxembourg. Over the past two decades, ILGA-Europe has intervened in over 20 cases as an amicus curiae (or a friend of the court). These third party interventions mean that ILGA-Europe can lend our years of experience to relevant cases, often in alliance with other human rights organisations. ILGA-Europe is grateful to have received the pro bono support of several legal experts, particularly Prof. Robert Wintemute, of King’s College, London, who has advised ILGA-Europe in this field since 1999.
- Where European Court of Human Rights cases are successful, helping our members ensure that their government makes the changes needed to implement the judgment at national level. This mainly involves making submissions to the Council of Europe Committee of Ministers which, through its execution of judgments process, seeks to ensure full implementation by member states.
- Enhancing coordination among organisations engaged in litigation on LGBTI human rights at European level by facilitating exchange of information and expertise between different actors.
Practical information on strategic litigation
- If you would like more information on any of this work, please contact Arpi Avetisyan, Litigation Officer.
- Please note that ILGA-Europe is not in a position to offer legal advice on the merits of your own particular case. If your organisation is interested in taking a strategic case to court, have a look at our detailed factsheet [link coming up]
- Convention rights before the European Court of Human Rights [link coming up]
- EU law and the Court of Justice of the European Union [link coming up]
- More resources and events that might be of interest [link coming up]