Unlocking the Power of Strategic Litigation

8 July 2024 –

Strategic litigation is a powerful tool for civil society organizations (CSOs) to advance their anti-corruption efforts, especially in contexts where law enforcement is weak or lacks independence. It can help establish legal precedents, publicly expose injustices, advance policy and legislative changes, and promote justice and accountability for victims.

During the 21st International Anti-Corruption Conference (IACC), Transparency International France and the UNCAC Coalition Working Group on Victims of Corruption held a workshop on “Unlocking the Power of Strategic Litigation”.

The workshop brought together civil society experts, academics, human rights professionals and others to catalyze the potential of strategic litigation for anti-corruption efforts.

The following experts shared their perspectives:

Key takeaways and recommendations from the workshop

From the left: Gillian Dell (Global Advocacy Lead, Transparency International and Chair of the UNCAC Coalition), Charlotte Palmieri (Advocacy and Strategic Litigation Officer, Transparency International France), Adriana Greaves (Co-Founder and Co-Director, TOJIL A.C.), Henri Thulliez, (Executive Director, PPLAAF), Céline Guillet (Public Prosecutor, PNF), Maria José Veramendi Villa (Human Rights and Anti-Corruption Officer, OHCHR).

These are the main recommendations speakers shared during the workshop:

  1. Advocate for legal standing
    CSOs should advocate for legal standing in corruption cases in order to shape proceedings, set legal precedent and promote accountability.
  2. Promote asset restitution policies
    CSOs should advocate for effective asset restitution mechanisms at the domestic level.
  3. Engage multiple jurisdictions
    CSOs should collaborate across borders to promote asset recovery and accountability.
  4. Prioritize jurisdictions with favorable asset restitution legislation
    CSOs should litigate strategically to recover assets and prioritize jurisdictions where asset restitution mechanisms are strong.
  5. Use international human rights mechanisms
    CSOs should make use of international human rights mechanisms to demonstrate the linkages between corruption and human rights.

Strategic litigation and legal standing – success stories from France and Mexico

Around the world, formal representation for CSOs in corruption cases is limited. Case studies from France and Mexico, however, demonstrate the power of strategic litigation in securing this outcome.

France

In 2007, French civil society identified instances where foreign leaders were sheltering the proceeds of corruption in the French real estate market. Initially, prosecutors hesitated to act upon this information until civil society organizations filed a petition to be included as civil parties in the case.

In 2010, this led – for the first time in French history – to civil society organizations being granted legal standing in a corruption case, leading to genuine impact on the anti-corruption efforts being pursued.

In parallel, Transparency International France, in collaboration with other civil society organizations, advocated for the creation of an effective asset restitution mechanism, leading to the adoption of relevant legislation in 2021.

Now, three anti-corruption organizations in France are afforded full rights as victims under French law, and others can also exercise certain rights as victims even when they are not able to prove direct damages resulting from acts of corruption.

Strategic litigation was pivotal in securing these achievements.

Mexico

In Mexico, in 2018, a former governor embroiled in an embezzlement scandal bribed prosecutors to receive a reduced sentence. TOJIL A.C. filed a strategic complaint claiming that they had suffered damages as a result of these acts of corruption and requested to be granted legal standing as collective victims in the case.

While a judge initially dismissed this claim, TOJIL challenged this decision in a federal court and achieved – for the first time in Mexico – legal standing for a CSO as a collective victim in a corruption case.

In 2022, TOJIL filed a similar complaint. While they did not achieve legal standing in this second case, the Mexican State did – for the first time ever- recognize the existence of a right to live in an environment free from corruption – a significant development in the relevant legal environment in Mexico.

TOJIL’s creative strategic litigation approach facilitated these achievments.

Cross-border litigation – a strategy to promote accountability

Corruption is an international issue, and almost all grand corruption cases have an international aspect to them. Litigating strategically across borders is therefore vital to securing accountability.

CSOs can collaborate across borders to facilitate the recovery of assets, and can maximize their impact by bringing cases in countries with more favourable asset recovery legislation.

The case of the Congo Hold-Up, involving the leak of 3.5 million documents exposing large-scale corruption in the Democratic Republic of Congo and elsewhere is a good example of the power of cross-border litigation.

PPLAAF – a whistleblower protection platform, with presence in several regions – was uniquely positioned to help coordinate cross-border litigation efforts.

Another benefit of cross-border litigation is that it increases international scrutiny of corruption cases, resulting in greater protection for whistleblowers and increased attention from authorities.

Breaking the silos between anti-corruption and human rights

Corruption has a significant impact on human rights and is often a significant factor in the commission of human rights violations. Strategic litigation can help advance justice and reparations for victims of such acts.

The United Nations human rights system has numerous avenues through which CSOs can pursue strategic casework on human rights and corruption.

One example is the Universal Periodic Review, a peer review mechanism which looks at countries’ human rights records. CSOs can participate in UPR sessions and advocate for the inclusion of language relating to corruption and human rights in country review processes.

Furthermore, under certain UN human rights treaty bodies, civil society can provide evidence regarding the impact of corruption on human rights in different countries and present information on how States should fulfill their human rights obligations.

On the issue of reparations for victims of corruption, civil society should advocate for reparations that go beyond monetary compensation for victims to include legislative changes, protection for victims and other guarantees of non-repetition. This broader approach ensures that reparations can help address the structural causes of corruption, rather than focussing narrowly on economic compensation for victims.

Finally, international human rights mechanisms can be used strategically to help advocate for legal standing for CSOs in national corruption cases. TOJIL currently has a case before the Inter-American Commission on Human Rights (IACHR), alleging that without legal standing in corruption cases in Mexico, the organization and its members cannot defend human rights.

Strategic litigation – a powerful force for accountability

As this blog post has shown, strategic litigation can be a powerful force for genuine anti-corruption impact. From securing legal standing for CSOs to coordinating asset recovery efforts across international borders; enhancing the protection of whistleblowers, to securing justice and reparations for victims of human rights violations; strategic litigation is a fundamental tool that should be part of any anti-corruption activist’s toolkit.

Strategic litigation can help promote justice for victims and accountability for perpetrators. Civil society should seek out more opportunities to unlock its power.