Administrative law, human rights and constitutional law fall under an umbrella called public law. Public law regulates the relationship between the State and individuals.
It defines what rights (i.e. the things people are entitled to) individuals have before agencies and government departments and what obligations (i.e. the things people have a duty to do) these public bodies have towards individuals.
It determines the competence of authorities (i.e. what they can and cannot do); and
It indicates which remedies an individual can get for the violation of her or his rights.
This applies to the actions of the police, who are agents of the state who work within public authorities (i.e. the police service). For that reason, it is often possible to challenge unlawful or arbitrary arrests on public law grounds.
This is different to a civil claim that are more individual and compensation focused. In public law challenges, the focus is on the unlawfulness of the policies or actions of public bodies, rather than the harm to the individual.
This type of legal action could be used in two different ways:
Focus Point: How do the two types of challenges interlink?
It is often possible and necessary to combine these arguments in your case.
For example, take a case where may challenge an individual arrest by a police officer. You may first challenge the arrest for breaching the law on police powers of arrest (i.e. “ultra vires” – see below).
However, if a court rules that the arrest was lawful and not outside of their powers, your remaining option is to challenge the law on the scope of police powers itself by arguing they they are unconstitutional or violate your human rights.
Before you bring a public law claim against the police, you should consider the advantages and disadvantages of bring such a claim:
|You may be able to get a remedy to compensate you for your loss or harm.||When responding to a complaint, the officer involved may make allegations about your own behaviour in order to justify their actions, which can be upsetting.|
|Making a complaint makes your concerns official, and a record will be made of those concerns and kept by the police force.||Unless you can access legal aid or get financial support, bringing claims can be expensive.|
|Public law challenges can led to law and policy reform.||Public law claims can be very time consuming and you will be responsible for gathering your own evidence.|
|Your complaint might help other people making complaints against the same officer to show a pattern of abuse or misconduct.||Levels of compensation awarded in public law challenges are often much lower than in civil claims.|
|Courts are in principle independent and less likely to be biased towards the police.|
|Litigation can create awareness around an issue.|
If you are making a public law challenge, in many systems your claim must be based on a “ground” or “cause of action”. The specific grounds or causes of action available will depend on your country’s legal system but we outline some common and relevant grounds below:
This principle means that where there is a law in your country which sets limits or conditions on the powers of a public body and the public body acts outside those limits, these acts can be challenged for being illegal or ultra vires.
In cases against the police, an arrest will be ultra vires if it is made outside the scope of police powers or without the procedural safeguards required under national law (see What Is an Unlawful or Arbitrary Arrest? for information on these laws).
In this case, the arrest of an individual for attempted murder was ultra vires because it was carried out without a warrant and without sufficient evidence for the police to have a reasonable suspicion the defendant committed the crime.
A law, policy, regulation or action of a public authority could be challenged if it violates a human right protected in your national law or constitution, such as the right to liberty. For more information, see What Is an Unlawful or Arbitrary Arrest?.
Even if there are no specific laws governing aspects of an arrest, police conduct could be unlawful if it is irrational or disproportionate. The test here is to consider whether the police officer’s decision was “so unreasonable that no reasonable authority could ever have come to it”. This is a high threshold to meet but it could apply where police act completely incompetently.
In order to bring a public law challenge, you must have “standing“.
For more information, see Who Can Take Legal Action? on the A4J Going to Court: Q&A.
Public law claims can generally only be brought against public bodies. Examples of potentially relevant public bodies include the police force, the relevant government ministry or the State as a whole.
In this case, the court ruled that it has the power to review the work of the senate and any other organ of government. This is particularly important where laws created by the senate are being challenged.
In public law actions, it’s the claimant who has the “burden of proof”. This means the person bringing a civil claim needs to prove their case.
If you are challenging an individual arrest, see the tips on what evidence might be useful in What Evidence Do I Need to Challenge an Arrest?.
When you have gathered evidence, your version of events and the evidence that supports it will need to be presented to the court. Usually, this will be presented in written “pleadings” or submissions that forms the basis of your civil claim (see below).
What information should I include in my claim?
In your written claim, you should generally:
- Describe the arrest and the circumstances surrounding the arrest.
- Identify the police officer and explain their role.
- The date, time and place of the arrest.
- Identify the legal basis of your claim (i.e. what law are you arguing has been breached? What is your ground or cause of action?)
- State the reasons why you consider the arrest was unlawful.
- Outline the evidence that supports your reasons.
- Explain the consequences of the arrest, and the reasons why it has caused you or other people loss.
- Explain what remedy or outcome you want.
I’m challenging a systemic issue. What evidence do I need?
If you are challenging a systemic issue, such as an unfair law or practice, you will need evidence that is broader than a single arrest.
Generally, you will need to show the scale of the problem you are challenging. The following types of evidence may therefore be useful:
- Evidence of the impact of a given law/practice (e.g. statistics on how a certain group is disproportionately targeted by arrests);
- Evidence of how there is insufficient safeguards on arrest powers or how safeguards are routinely not enforced (e.g. statistics on the number of people released after arrests could show that a lot of baseless arrests have been carried out);
- Comparisons with international standards and laws in other countries to highlight a lack of safeguards.
You may be able to find this information in reports by NGOs, reports from UN human rights bodies on the situation in your country, national police statistics or reports of government
The exact procedure you will follow will depend upon the type of claim, the court, the procedural rules of the court and the jurisdiction in which you are bringing the claim.
In many countries, the process of enforcing public laws against public bodies is called “judicial review”.
Example: South Africa
Judicial Review has been used many times since in South Africa since the establishment of its recent constitutional democracy and has been a relatively effective means for holding public bodies accountable. The South African Constitutional Court is able to use this process to review procedural and substantive issues.
While in many Latin American countries, a process called “amparo proceedings” are used to challenge unlawful acts by public bodies.
Focus Point: Amparo Proceedings
In some Latin American countries, the amparo trial is one of the most efficient ways to defend oneself from abusive government acts and when constitutional rights are violated.
- The amparo trial can be invoked by any person to whom his or her rights have been violated.
- Amparo trial and its procedural venue can vary according to the procedural law of each country.
The following steps are common in many systems:
Write a formal letter to the proposed defendant setting out the proposed claim and what you wish to achieve. A response is usually requested from the defendant.
Submit your "claim form" to court within the required "time period" (there is usually a number of months of years after the incident within which you must file your claim).
Present your grounds for the claim to the court, which will be shared with the defendants. This document can be referred to as a "statement of claim", "statement of case", "particulars of claim" and "complaint". This then have to be shared with or "served" on the defendant.
In some countries, you have to apply for permission to bring a public law claim. This is a process where your claim is vetted to see if it's credible or has reasonable prospects of success before the defendant has to respond. The defendant can present arguments at this stage. In other countries, the claimant does not have to apply for permission but the defendant can make an application to dismiss the case or apply for summary judgment. The court will then decide whether the case is sufficiently credible or has reasonable prospects of success in order to decide whether to allow it to continue.
Defendants will then have a chance to explain their position. They can either accept all or part of your claim, or deny your version of events in full. This document is known as the "defence".
You and the defendant may be asked to share the evidence you are relying with each other. If you are using witnesses, you will usually need to include what they are going to say in a "witness statement" or "affidavit".
At the hearing, you will present your arguments, including a review of the key evidence already likely filed with the court, witnesses may give oral evidence and can be questioned by the lawyers. The court then makes its decision.
The losing party generally will have the right to appeal this judgement before a higher court.
Generally, the following remedies can be awarded in public law challenges:
Example: Arnesh Kumar v The State of Bihar (India)
It was alleged that the claimant demanded a dowry payment from his future wife’s family and drove his future wife out of his home when she refused. He was then arrested for requesting a dowry payment. After not being granted bail, the claimant brought a challenge to the Indian Supreme Court.
The court noted that these types of arrests were regularly being brought without sufficient evidence and had a very low success rate in court. It highlighted the need for police to exercise caution when making an arrest. They ruled that arrests must be necessary and based on a reasonable suspicion instead of being made automatically because of an allegation.
The court found the arrest in the claimant’s case was unlawful (ultra vires) and ordered his release. Noting the widespread issue that the case raised, the court went further and made the following general orders:
- All the State Governments must instruct police officers not to automatically arrest before satisfying themselves about the necessity for arrest under the law;
- All police officers must be provided with a checklist of the legal requirements;
- The police officer shall forward the checklist and reasons for the arrest to a court after the arrest;
- The court must assess the police report before authorising detention;
- Failure to follow these directions shall make the police officers concerned liable for departmental action and punishment for contempt of court.
This case shows that a public law challenge in one case can lead to widespread changes to the law for everyone.
If your claim is based on human rights and you lose at the national level, it may be possible to bring your case to a regional or international human rights body. Bringing a claim to a regional or international court could be helpful in the following cases:
Individual complaints to these bodies are like bringing human or constitutional rights claims before national courts (they are legal complaints) so the earlier guidance in this section applies.
Regional human rights courts and commissions can enforce regional human rights treaties when available domestic mechanisms (courts or other) have failed to protect your human rights. These bodies can launch investigations into your case, facilitate negotiations between you and the government, declare that your government has violated your human rights, and order the government to give you a remedy and change its laws or policies.
Examples of Regional Human Rights Courts
The main regional human rights courts are:
- If in Europe, you could go to the European Court of Human Rights which enforces the European Convention on Human Rights;
- If in the Americas, you could go to the Inter-American Commission on Human Rights or the Inter-American Court of Human Rights to enforce your rights under the American Convention on Human Rights.
- If in Africa, you could go to the African Commission on Human and Peoples’ Rights or the African Court of Human and Peoples’ Rights to enforce your rights under the African Charter on Human and Peoples’ Rights.
- If in West Africa, you could enforce the same rights before the ECOWAS Community Court of Justice.
You may have the option of bringing an “individual complaint” (i.e. a case) to a regional or international human rights body if:
There are many cases where regional human rights commissions and courts have been able to secure justice for people subject to arbitrary detention.
Example: Abdel Hadi & Others v Sudan (African Commission on Human and Peoples’ Rights)
The claimants were displaced persons whose refugee camp was raided by police who rounded up and arrested the people in the camp. None of the claimants were informed of the reason for their arrest, were granted a lawyer and they were held without charge for 12 months.
The ACmHPR held that this amounted to a clear violation of the right to liberty and security in the African Charter on Human and Peoples’ Rights, and ordered compensation, an investigation into the arrests and necessary amendments to Sudanese law.
There may be the possibility to enforce your state’s human rights obligations through individual complaints before UN human rights treaty bodies. This could be particularly useful if you are based in a country that is not covered by a regional human rights court.
While these aren’t courts, they have individual complaints mechanisms which hear individual complaints like a court. In a number of cases, they have made recommendations to governments to release people from arbitrary detention and pay compensation.
To access these bodies, your country must:
(i) Be a party to the relevant international human rights treaty
(ii) Have accepted the competence of the treaty body to receive complaints against the state; this may be in the optional protocol to the treaty
Key Resource: OHCHR Website
Here you can find information on:
- What countries have signed and ratified different human rights treaties
- The different treaty bodies that exist
- Guides for how to submit a complaint
- Past cases and examples