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Who can take legal action?

Public interest litigation can be brought as a civil case or as a private prosecution under criminal law. A first step is to examine which parties may have the right to bring legal action in either case.

1

Who has the right to sue? The requirement of "standing"

Before taking a case to court, it is important to establish that you have the right to do so – or, to use the legal term, you need to ascertain that you have “standing” to sue (also known as “locus standi”). If the court finds you don’t have standing, it will reject your case on formal grounds, and no decision will be taken on the merits (the substance) of your claim.

Usually, only a legally recognised “person” or “entity” can have standing, and not an informal grouping or an abstract concept. A person might include an individual “Mr. Rajid Tan”, a company “Sustainable Forests Pty”, a registered NGO “the Dewale Wildlife Trust” but not, for example, “the Gonzales family” or “Rokavango Village” or “Green Side Natural Park”.

However, rarely, a national law gives standing to an abstract concept such as “Pacha Mama” (the environment) under Bolivian law or “future generations” under Philippine law.

Each legal system has its own law of standing, and whether you have standing may depend not just on who you are, but also on the type of case or the remedy you are asking for.

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.

Standing to bring Public Interest Litigation (PIL)

A requirement to show a special, direct, or individual interest can be an obstacle if you are planning to bring Public Interest Litigation (PIL), because by definition, PIL is directed at the wider public interest.

In some countries, NGOs are entitled to bring claims in the interest of their members or their statutory goals. 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. However, an association set up by victims of the pollution with the stated goal of defending their collective interests against the factory may have standing, particularly if it has a sufficient number of members to be representative.

In other countries, persons who bring PIL may be able to take advantage of more relaxed rules specifically for PIL. Individuals and groups may be granted standing even though they do not have a concrete and personal interest in the matter.

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

a) A judicial decision – some examples:

  • Some state courts in the US have recognised that a citizen who wants to enforce a public duty does not need to show that he has any special interest in the result. It is sufficient that he is interested as a citizen or taxpayer in having the laws properly fulfilled and the duty in question enforced.
  • In France, since 2008, the right to PIL is not limited to legally-entitled public interest groups; any registered association may bring civil claims to defend its collective interest. In short, virtually any public interest group may bring a PIL.
  • In China, a Chinese environmental protection NGO, All-China Environment Federation, was granted standing to file a suit against Jiangyin Port Containers Ltd (a private terminal and shipping services company). They claimed the company was creating air, water and noise pollution during the process of unloading, washing and transporting iron ore.

The case was resolved in 2009 through mediation and the defendant was required to correct its environmental violations. This was the first PIL successfully brought in China.

b) An article in a law or in the Constitution

Sometimes a law or the Constitution gives a right to bring PIL. This may be a general right or it may be restricted to certain topics. Some examples:

  • In South Africa, PIL is a constitutional right. 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.
2

Criminal proceedings: who can take a private prosecution?

Citizens or civil society groups can approach law enforcement authorities with strong and reliable evidence that an offence has been or is being committed.

In theory, this can form the basis of an investigation and may, depending on the strength of the evidence, lead to the initiation of a case.

In the real world, however, public prosecutors enjoy broad discretion in deciding which criminal cases to pursue, and sometimes they will decide not to take up a case, despite being presented with credible evidence.

In some countries, the law allows a person who disagrees with this decision to challenge the prosecutor in court. In other countries, an individual or NGO may be able to take the criminal case to court itself; this is called a “private prosecution”.

Private prosecution is the right for a private party to file a criminal case directly with the court. Upon receiving the complaint, the court is obliged to proceed with the case unless the facts in question do not constitute an indictable offence.

Who can bring a private prosecution depends very much on local law. The following are categories that have standing to bring a private prosecution in some countries.

a) Legally authorised public interest groups:

Some jurisdictions 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. Some examples:

  • 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.
  • In France, many associations are granted the right to initiate private prosecution in relation to certain matters of public interest.
  • The victim:

In some countries, the right to private prosecution is limited to the victim of the offence. Some examples:

  • In South Africa, the law states that where a public prosecution is not initiated, an individual can take a private prosecution but only 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.
  • In France, “Civil action aimed at the reparation of the damage suffered because of a felony, a misdemeanour, or a petty offence is open to all those who have personally suffered damage directly caused by the offence.” This clause was successfully used by an anti-corruption group, Transparency International France (TIP), claiming an infringement of its organization’s interests as a result of the alleged money laundering activities in Africa of the Bongo, Sassou Nuesso and Obiang clans. It argued that these offences impaired TIF’s core mission.

In November 2010, the French courts ruled that TIF had the required standing to pursue the case.

b) Private prosecution by good faith litigations

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. The petitioner is entitled to act without having to prove that  s/he personally suffered any damage from the actions in question.

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. Any person may therefore institute private prosecution in respect of any indictable offence.

However, in practice only a minuscule portion of prosecutions is actually brought by private parties. This is not surprising because a private party does not enjoy the same powers of investigation as law enforcement authorities and bringing a case requires sufficient funds and expertise. Private prosecutions are further discouraged by the fact that:

  • Private prosecutions for certain offences can only be instituted with the consent of the public prosecutors
  • Prosecution services can at any time take the prosecution away from the private citizen, either to continue with it, or to discontinue it .
  • Spanish law offers the most far-reaching provision as article 125 of the Spanish Constitution guarantees 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.  Acusación popular enabled the Spanish organization Asociación Pro Derechos Humanos de España (APDHE) to successfully launch a money laundering case in Spain.
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