Strategic litigation before the European Courts
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Strategic litigation before the European Courts Aidan O’Neill 1
Published online: 14 January 2016 © ERA 2016
Abstract Strategic litigation involves the continuation of politics before the courts by elements of civil society. Our European Courts appear reluctant to be drawn into areas of political controversy. The CJEU’s strict rules on standing discourage strategic litigation. Luxembourg’s restrictive approach occasions much expression of frustration (and disbelief) from NGOs that the doors of this court be closed to so many, who are thereby deprived of their fundamental right to an effective remedy. Less complaint is made of the ECtHR “victim test”, but that is primarily because NGOs can readily appear in their own right before the Strasbourg Court as interveners. Keywords Strategic litigation · Standing · Victim test · Effective remedy
1 Introduction: the MORAL vision of the democratic polity European democracies, as re-formed after the final ending of the Second World War in 1989, may be described, as a matter of (positive, constitutional) law, to be heirs to the Christian tradition, to the Enlightenment and to Kant. The values which the post-Nuremberg democratic State seeks to incorporate and bind its institutions to, are based on acceptance or recognition of the inestimable worth of the individual as being an end in herself and never as a means. And one of the purposes of reference to individual human rights is precisely to protect those who are in minorities against the possible tyranny of the majority. What a democratic polity brings into the realisation of those fundamental values is the idea of due process, of the rule of law, the procedural rights of the defence and the like. There is recognised to be a value in itself of democratic process and the
B A. O’Neill QC, Barrister
[email protected]
1
Matrix Chambers, Gray’s Inn, Griffin Building, London WC1R 5LN, United Kingdom
496
A. O’Neill
maintenance of dialogue and free expression as the only means toward the resolution of moral and political disputes. From the viewpoint of civil democratic society, it makes no sense to seek to disentangle ideas of substantive “human rights” from the deliberative and procedural matrix in which they have been engendered. Civil democratic society therefore shows a lack of certainty or finality in the judgments made on how those substantive values are to be realised, and on the requirements of the common good. Civil democratic society is open to the possibility of alternative views of the good from those which currently hold sway, and in its procedures for general consideration and popular participation in the process of deliberation and decision on how we might achieve the common good. Civil democratic society admits its fallibility in getting the right answer, but it has procedures and institutions to allow for continued debate, and for the possibility of change in the rules and the law in this search for the right answer. Such an admission of fallibility does not mean, as is sometimes charged, that a dem
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