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Who Can Take Legal Action?

In this section we look who is legally entitled to bring a litigation case. This will depend on the type of court, the country the claim is being brought in, and the subject matter of the case.

1

Civil and Administrative Cases

Civil and administrative cases are those cases that are based on civil or public law. For an introduction into these areas of law, see What Laws Could I Enforce?


(a) The Requirement of “Standing”


To bring a civil or administrative case to court, you must have the legal right to bring a case. This requirement is known as “standing” (also known as “locus standi”).

If the court finds that you don’t have standing, it may reject your case, and then no decision would be taken on the substance of your claim. For that reason, it’s important to assess whether you have standing before taking a civil or administrative case.

Each legal system has its own law of standing. This section will outline certain categories of persons or groups that sometimes have standing in different legal systems.


(b) Victims or Affected Individuals


Civil and administrative claims can generally only be brought by the people or entities that have been affected when a national law is broken.

 

(i) Civil Claims

In civil claims, claims can generally be brought by the person, company or organisation that is arguing that their private rights have been violated

  • For example, this may be an individual who have been personally injured by an accident caused by another person; or
  • This may be a person that was party to a contract with a company, and that company breached the contract.

 

(ii) Administrative & Human Rights Cases

Frequently, the standing requirements for cases against the state or public authorities are more challenging. This is to give the government more flexibility as it performs its work. For the same reasons, courts in some countries require that claims against the state or public authorities satisfy certain standing criteria before being allowed to proceed.

In administrative cases, a common requirement is that you must be able to show a “special interest” or a “direct and personal interest” in the outcome of the case you are bringing in order to have standing.

  • For example, you might be upset by illegal logging on land near where you live but, without an interest in the land, you may not be able to take legal action yourself.

In human rights cases, traditionally only persons who are directly or specially affected by alleged human rights violations will have standing to bring claims before a court (in some systems this is called «victim status»).

  • For example, a person that who arbitrarily arrested would have standing to bring a human rights claim for a violation of their right to liberty.

In many national and regional systems, people suffering from potential human rights violations also have standing. To establish standing on this basis, you have to have evidence that there is a real risk your human rights will be impacted by a certain action or policy.

 

(iii) Class Actions

Where multiple individuals are affected by an action in a similar way, some systems allow them to bring the case together. In these cases the group is represented collectively by a single claimant. These actions may be called a “group”, “collective” or “class” action.

Practical Tip: Using Class Actions to Save Costs

This can be a good way to save money as the costs of taking legal action can be shared among the group, rather than one person having to pay all the costs. However, there can be difficulties in managing a group. For more information, see How Do I Manage My Group?

 

(iv) Representatives with Standing

In most jurisdictions, there are circumstances where someone who wouldn’t usually have standing can bring a claim on someone else’s behalf.

This is often because the person is vulnerable. For example:

  • Parents and guardians can often bring claims on behalf of children;
  • «Litigation friends» can often be authorised to bring claims on behalf of people with severe disabilities; and
  • Close family members can bring claims on behalf of family members that have died.

In some jurisdictions, it may also be possible for civil society organisations to bring a claim on behalf of a group of individuals.


(c) Public Interest Groups


In some countries, civil society organisations and groups are entitled to bring claims in the interest of their members or objectives. For example, if a factory is causing pollution in an area where a few thousand people live, it may be that:

  • One person does not have standing to bring a case, because s/he is not affected in a very individual or particular way
  • BUT an association set up by victims of the pollution with the stated goal of defending their local environment against the factory may have standing, particularly if it has enough members to be regarded as representative.

Example: Save Lamu v Nema & Amu Power Ltd

In Kenya, a local community group came together and created a group called «Save Lamu» in response to environmental threats to their local area by a coal mine. They successfully challenged the licensing of a coal-fired power plant on the basis it was granted without a proper environmental impact assessment was conducted.

Some countries also have different standing rules specifically for public interest litigation. This may mean that individuals and groups may be granted standing even though they do not have a concrete and personal interest in the matter (sometimes called “actio popularis”).


(d) The Rights of Nature and Other Concepts


Usually, only a legally recognised “person” or “entity” can have standing, and not an informal grouping or an abstract concept.

A person or entity generally includes:

  • An individual, e.g. “Mr. Rajid Tan”
  • A company, e.g. “Sustainable Forests Pty”
  • A registered NGO, e.g. “the Dewale Wildlife Trust”

Generally, informal groups (e.g.“the Gonzales family”) or abstract concepts (e.g. “Rokavango Village” or “Green Side Natural Park”) do not have standing.

There are exceptions, where a national law gives standing to an abstract concept.

Example: Rights of the Environment
In Bolivia and Ecuador, the constitution grants the environment (“Pachamama”) rights under Bolivian and Ecuadorian law. Similarly, national laws in New Zealand give similar rights to specific rivers and national parks. Whereas in the Philippines, “future generations” have been recognised as having the right to a healthy environment.


(e) Where Can I Find the Rules on Standing?


Unfortunately, finding out whether you have standing can sometimes be complicated and you may need assistance from a lawyer. The conditions you need to meet might be found in different places:

 

(i) Judicial Decisions

In some countries, the rules of standing have been created by courts through case law.

Examples: Case Law on Standing

  • US courts have recognized that a citizen who wants to enforce a public duty does not need to show any special interest in the result. It is enough that he is interested as a citizen or taxpayer in having the laws properly fulfilled and the public duty in question enforced.
  • In France, any registered association may bring civil claims to defend its collective interest. As a result, virtually any public interest group may bring a PIL case.
  • In China, a Chinese environmental protection NGO was granted standing to bring a claim against a shipping company. They claimed the company was creating pollution during the process of unloading, washing and transporting iron ore. The case was resolved through mediation and the defendant was required to correct its environmental violations. This was the first public interest litigation case successfully brought in China.
  • In the Philippines, the Supreme Court ruled in favour of an NGO acting on behalf of future generations, finding that they had a right to a healthy environment and resulting in the cancellation of a government timber license.

 

(ii) Constitutions or Legislation

Sometimes a law or the country’s constitution clearly sets out the standing requirements that relate to different types of cases. This may be a general right or it may be restricted to certain topics.

Examples: Legislation on Standing

  • In South Africa, there is a constitutional right for people to bring cases on issues of public interest. Virtually anyone can bring an action to protect a provision of the Bill of Rights which includes, among other rights, the right to an environment not harmful to health and well-being, right to housing, health, sufficient water and food.
  • In Brazil, the Public Civil Action Law (“Lei de ação civil pública”) of 1985 authorizes registered civil society organizations to file lawsuits to seek remedies for any kind of harm caused to the public interest.
  • In the US, environmental citizen suits (which may be brought by either individuals or citizens groups) are authorized under major federal statutes.

If you do not have standing to bring a case in your country, it may be possible to bring your claim in a court in another country, or in an alternative international or national body. For further information, see Where Can I Take Legal Action?

2

Criminal Cases


(a) Law Enforcement Agencies


Law enforcement bodies are responsible for taking criminal cases in most countries.

In general, the police are responsible for undertaking criminal investigations and prosecutors are responsible for bringing criminal cases to court after the police have investigated. In some areas, there may also be specialised state agencies that take criminal investigations into certain crimes (e.g. anti-corruption agencies).

To get these bodies to start an investigation, you have to report the alleged crime to the law enforcement authorities. Any individual or organisation can report their suspicion that a crime has been committed.

Practical Tip: Provide Evidence in Your Report

To increase the chances of the police starting an investigation after you have reported a crime, provide them with as much information as possible.

Always keep a copy of any communication you have with police or any documents you share with police. This can be important if you later need to take a case/complaint against the police for not acting.

If, after reviewing your report, the law enforcement body decides to take the case further, they will be responsible for gathering evidence and taking the case to court.

If the law enforcement agency decide not to take the case further, this may be because:

i) They don’t think a crime has been committed after genuinely reviewing the incident. ; or

ii) They have very few resources and are unable to start a full investigation; or

Example
While the worldwide average tends to be 188 police officers per homicide, the median for countries in Africa is only 22 police officers per recorded homicide. This leads to delays and a denial of justice in many serious cases.

iii) The police may not want to investigate the case despite there being credible evidence that a crime was committed. They might even be hostile to you when you report a case. This could be because they are influenced by corruption or a conflict of interest. For more information, see the A4J Corruption Guide.


(b) Challenging a Decision not to Investigate a Crime


In most countries, police and prosecutors have a wide discretion in deciding which criminal investigations to pursue and they may not think your evidence is as strong as you do. However, if you are convinced you have presented credible evidence that a crime has been committed and the police/prosecutor has not started an investigation, it may be possible to challenge this decision.

In some countries, the law allows a person who disagrees with this decision to challenge the prosecutor in court. However, it is often necessary to show that the prosecutor’s decision was not simply wrong, but obviously or unreasonably incorrect.

Example: Challenging Prosecution Decisions in Kenya

In Kenya, and many other countries in the Commonwealth, there are 2 main ways to challenge a decision not to prosecute:

You can make a constitutional reference to get the high court to review the decision; or

You can take a judicial review case where a court could order an investigation to be started.

In some cases, prosecutors are obligated under human rights law to take cases forward when they involve a serious breach of human rights, such as the right to life.

Example: IHRDA and WARDC on behalf of Mary Sunday v Nigeria

Two civil society organisations, the IHRDA and WARDC, brought a case to the ECOWAS Community Court of Justice on behalf of Mary Sunday. Mary Sunday was a Nigerian woman who was subjected to domestic violence by her husband, a policeman. She complained to local law enforcement authorities in Nigeria but they were unwilling to investigate and prosecute in a case involving a member of their police force.

The ECCJ held that the failure of the police to investigate violated Mrs Sunday’s rights to access to justice and to have her case heard.  They ordered the state to pay Mrs Sunday reparations.

Example: Barrios Altos v Peru

Families of victims who had been killed by the Peruvian army took a case to the Inter-American Court of Human Rights complaining that an amnesty law, that prevented investigations of the killings, violated the right to life.

The IACtHR held that the right to life required the Peruvian government to investigate killings by the state and the amnesty law violated this obligation.

An alternative to challenge a decision not to investigate a case is to take a “private prosecution” to secure justice.


(c) Private Prosecutions


In some countries, an individual or NGO may be able to take the criminal case to court itself; this is called a “private prosecution”. Private prosecutions can be a vital way in securing justice when law enforcement authorities are unable or unwilling to take your case.

In such cases, upon receiving the complaint, the court is obliged to proceed with the criminal case unless there is an obvious defect (e.g. the facts in question do not constitute an indictable offence).

Who can bring a private prosecution depends on the local laws of the country in question.

The following entities have standing to bring a private prosecution in some countries:

 

(i) Legally authorized public interest groups

Some countries allow registered groups to bring criminal charges in relation to matters affecting public interests. In most cases, the group can take action even when it does not itself suffer harm from the offence. Its right to do so stems simply from the general right to bring a private prosecution.

Examples:

South Africa
In South Africa, anyone with the legal right to take a private prosecution in respect of any offence can do so before any competent court. For example, the National Environmental Management Act (107/1998) expressly provides for private prosecutions in relation to the protection of the environment.

France
In France, many associations are granted the right to initiate private prosecution in relation to certain matters of public interest. Transparency International France (TIF) used this entitlement to claim an infringement of its interests as a result of the alleged money laundering activities in Africa. It argued that these offences impaired TIF’s core mission. The French courts ruled that TIF had the required standing to pursue the case.

 

(ii) The Victim

In some countries, the victim of an offence can bring a private prosecution, or a related civil claim.

Example: South Africa
In South Africa, the law states that where a public prosecution is not initiated, an individual can take a private prosecution where they can prove substantial interest in the offence concerned. This rule has been narrowly interpreted as applying only to natural persons, not legal entities.

 

(iii) Citizens Generally

In some countries, private prosecutions can be brought by anyone, in relation to any offence, if the aim is to enforce the law rather than seeking compensation. It is not necessary to show that the person bringing the private prosecution suffered in relation to the offence.

Examples
In common law jurisdictions (which include the UK and many former parts of the British Empire, such as Australia, India, Hong Kong and Singapore), every citizen generally has exactly the same right to institute proceedings as the prosecuting authority.

Spanish law gives every citizen the right to bring criminal charges through the “acusación popular”. Any Spanish citizen or NGO with “sufficient interest” can file a criminal complaint (“querella”) before an investigating magistrate in order to launch criminal proceedings.

 

(iv) Difficulties in Bringing Private Prosecutions

In practice, a very small proportion of prosecutions is commenced in this way.

There are a number of practical and legal reasons for this:

  • A private party does not enjoy the same powers of investigation as law enforcement authorities.
  • Bringing a case requires sufficient funds and expertise.
  • Private prosecutions for certain offences can only be instituted with the consent of the public prosecutor.
  • The public prosecutor can at any time take over the prosecution from the private citizen, either to continue with it, or to discontinue it.

Where this is the case, consider alternative ways you can secure justice in your case. This may be by bring your claim in a civil or administrative court, through international or foreign courts, or through alternative international and national bodies.

For further information, see Where Can I Take Legal Action?

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