Filing your lawsuit may not be as simple as going down to the local courthouse. When it comes to strategic litigation, choosing where to file your case has a huge bearing on both your chances of success and the eventual results you achieve. As you do your research, you may be surprised at how many options you have. This section will give you guidance on where exactly you can file your case, and from those options, where it makes the most sense to file.
1. Where can you file your case?
Researching jurisdictional laws
Your first step should be to determine where you can file your case. You should track down and examine the relevant local, state, national and international laws, rules and customs that set forth who may file a claim, when they may file a claim, and what filing a claim would entail.
You will need to figure out where your claim would meet the threshold criteria for filing; be creative and thoughtful when you begin your research and you may be surprised by how many options you have.
If you file your case in a local, state or national court, the place where you file will be known as your jurisdiction. Jurisdictions have very different rules as to when and by whom a case may be filed. There may be residency, citizenship, or other requirements. The laws and rules that apply in this jurisdiction will be very important to the outcome of your case. Sometimes a court may look to or apply the laws of another jurisdiction when they are relevant, but will likely do so in its own discretion and with its own point of view.
If you file your case with an international body, they may still apply the rules and laws of a certain jurisdiction. But in determining whether you are eligible to file your claim, you will most likely find your answer in the court or tribunal’s rules. If you choose to file with an international body, be sure to think about how the case could interact with other local, regional, national or international efforts.
Find out more about international human rights mechanisms.
See how to submit a complaint using a mechanism of the UN.
2. Where should you file your case?
In thinking about where to file your case, it is not just a matter of location. Your first thoughts may include the jurisdictions where the plaintiffs reside, where the defendants reside, and where the actions or violations about which you are suing occurred. However, these are not your only choices – there are both international tribunals and national courts in other jurisdictions that might be willing to hear your case.
After you have figured out your full range of options, it is well worth your while to research the possible jurisdictions, courts, tribunals, and other judicial bodies before you make your selection. A general list of places you might consider filing your case follows:
- Municipal, local, or state courts;
- National courts;
- International courts, tribunals, or commissions (see our guides to the UN and international human rights systems); or
- United Nations treaty bodies.
For more information on domestic, regional and international options for bringing a case, see our access to justice for children project.
Judges and legal professionals
The independence and integrity of judges and legal professionals working in the jurisdiction is crucial to your success. In order to ensure that your case is given a fair chance, judges, lawyers, and all judicial and legal personnel must have the means, opportunity and support to do their jobs well.
Judges: As judges and judicial employees will both oversee your case and write relevant orders and decisions, you will want to look for a system that offers a competent, well-trained, independent and impartial judiciary. Given the progressive nature of strategic litigation, you might also prefer more proactive judges.
If judges in a certain jurisdiction are known to be prone to outside influence or otherwise partial, the goal of your case might not be to win, but to highlight this corruption and bring it to the attention of the international community.
- Guatemala: Two NGOs jointly brought a case before the Inter-American Commission on Human Rights to challenge adoption proceedings where judges had allegedly been taking bribes to fast track approval. See full details of the case (in Spanish).
Lawyers: Lawyers are key to winning your case as they will be advocating in the courtroom on behalf of the plaintiffs. To be effective, lawyers must be able to work without being threatened, intimidated, harassed, or otherwise confronted with interference. They must be able to freely travel to meet their clients, experts, consultants, and other persons involved with the case both domestically and internationally. If they act within a jurisdiction or tribunal’s codes of professional or ethical conduct, they must be able to rely on those codes and know that they will not be sanctioned or otherwise punished for their behaviour in connection with the case.
Because of the different legal systems operating across jurisdictions, the impact your case can have on the laws in those jurisdictions varies widely. The three major types of legal systems in the world are common law, civil law and religious law. You should determine which system each of the potential jurisdictions has adopted and be aware of the impact that it will have on your case. You may also wish to research the way in which international laws or treaties interact with the relevant jurisdiction’s legal system.
Common law: Some jurisdictions, particularly those of the United Kingdom and former British colonies, operate on a system of common law. In common law jurisdictions, the law is determined not only by written laws, but by court decisions. This means that when a judge looks at your case, he or she will not only look to the statutes, regulations, guidance, code, or other written laws you reference, but will also look for any past court decisions that might relate to your case. In common law systems, precedent – the body of past court decisions – plays a much larger role than in other legal systems.
Civil law: Civil law is the most widespread system of law, and is in place across most of the continent of Europe and many former European colonies. Civil law relies more heavily on written codes than common law. As a result, precedent plays less of a role and judges are less likely to give weight to past decisions in civil law jurisdictions. This means that although your case may have a big impact on your plaintiffs’ lives, it may not necessarily greatly alter the courts’ ways of looking at the law in general or in any similar cases that might arise in the future.
Religious law: In religious legal systems, religious doctrines or texts take a primary role in the crafting, interpretation and application of the jurisdiction’s laws. The importance of court decisions and precedent varies depending on the predominant religion and the precise legal system in place, but judges in many jurisdictions do give at least some weight to both previous court decisions or orders and the opinions of respected religious legal scholars.
International law – monist and dualist systems
In general, there are two ways jurisdictions approach treaties and other international agreements. In what are called monist systems, international laws and agreements can be enforced directly by national authorities and in national courts once a treaty or agreement has been signed, ratified, and entered into force. In dualist systems, however, treaties or agreements cannot be enforced by the authorities or in the courts until there are national laws passed to incorporate the principles behind those treaties or agreements. Because of this, if your lawsuit involves international matters, it may be in some ways easier to bring a case in a monist system, a jurisdiction that would apply the clear language of the treaty or agreement itself.
Convention on the Rights of the Child: Although the CRC is in force almost everywhere in the world, this means very different things in different jurisdictions. In some countries, children enjoy their full legal rights under the Convention and may be entitled to bring cases where their CRC rights have been violated. In others, the Convention serves only as a source of aspiration and is not directly enforceable in court. Even where it does not carry the full force of law, however, the CRC may be a valuable tool for courts to look at claims that relate to children’s rights.
See how the CRC has been incorporated in various jurisdictions through our access to justice for children project.
For case law examples referencing the CRC, visit our legal database.
Laws and precedents
Different courts, even within the same jurisdiction, may have widely varying laws, rules and procedures. They will rely on different precedents in analysing both your claims and the law itself, and you want to be sure to figure out what each court or tribunal’s likely outlook or predisposition towards your case might be. To begin, you should look to see if the court or tribunal you hope to file your case in has dealt with any similar cases before or any strategic litigation in general. If not, you might want to try to figure out how active a role judges and courts take in overseeing cases and what their general tendencies are. More conservative jurisdictions or tribunals may be less open to innovative claims or potentially groundbreaking activist litigation.
- If during your research you uncover that a court or tribunal is currently addressing a case with very similar subject matter, you may want to contact the lawyers on that case about intervening, cooperating or pooling your resources. You may also be able to file your own case and then have the court or tribunal consider the two of your cases together.
Remedies and impact
Depending on the court you file in, the remedies you can seek in your case may also be vastly different. Some courts may only be able to offer monetary compensation, whereas others will have broader powers. By the same token, the impact of your success or loss may be dramatically higher or lower depending on the court or tribunal that issues the order or decision.
As a general rule, the higher the court or tribunal, the broader and more powerful the impact. You might wish to choose a well-known or respected court whose judgments will be influential not only on a national level, but potentially on an international scale as well.
For more information on available judicial remedies in your jurisdiction, see our access to justice for children project.
Appeals: Access to higher courts may be wholly or partially restricted to appeals, cases where a lower trial court has already made a determination and the losing party has asked a higher court to review that decision. Appeals can be key to strategic litigation, both in terms of ensuring that your case will be fairly heard and in terms of getting access to higher, more prominent courts to raise the profile of the case and offer a deeper impact. You should be sure to investigate the appeals procedure in the jurisdiction where you want to file your case and figure out which courts you could appeal a decision to (including relevant international tribunals) and how long the process might typically take at each step or level.
Timing: The impact of your case and the effectiveness of the remedies the courts could offer might also depend greatly on timing. Where the harm being done to the plaintiffs is severe and continuing, you may want the court to intervene early on to prevent further damage and ensure the plaintiffs' safety. If the damage has already been done, though, timing can be less crucial as the court may be able to offer little more than monetary compensation. Nevertheless, obtaining a quick, early win may still be able to help gather momentum and support behind your cause and lay the groundwork for other cases to succeed.
Children and timelines: When you are working with child plaintiffs, keep in mind that children sometimes operate with a different sense of time and may expect a faster resolution than is possible in the court system or with the kind of claim that you are bringing. Because of this, you should be sure to be clear and upfront with child plaintiffs about your timing, goals and expectations.
Civil vs. criminal
In some instances, you may have the option to pursue both civil and criminal cases. Civil cases are generally brought by individuals or organisations seeking remedies from the court to cease or compensate for damage caused by the defendants. Criminal cases are usually filed by government or tribunal lawyers (often called prosecutors) to punish or otherwise sanction a defendant for breaking the jurisdiction’s criminal laws or codes of conduct, although some jurisdictions may allow for privately-filed criminal cases in certain circumstances.
Civil cases: Filing a civil case generally gives you more control over the proceedings as you are pursuing your claims directly before the court. With imprisonment and other criminal punishment off the table, there may also be more relaxed standards for evidence or proof which could make it easier for you to win your case. As the goal in civil cases is to remedy the wrongs that were done, they also generally provide opportunities not only to force defendants to stop harmful actions, but also to seek compensation for damage already inflicted. However, civil cases are generally lengthier and more expensive to bring than criminal cases. This is especially true where separate criminal cases have been filed against the same defendants; in those instances, courts or government lawyers may suspend all civil cases until the criminal cases have been resolved.
Criminal cases: Criminal cases can be higher profile and more powerful than civil cases. Because of the penalties or punishments that criminal cases bring, they may also serve to warn other people or organisations involved in similar activities to change their behaviour. However, criminal cases may be both harder to bring and harder to win. The standards for evidence or proof could be higher, and the government lawyers might have more limited resources or be politically constrained. These factors may be worth considering before you encourage the government to press charges, pursue a private criminal lawsuit, or otherwise agree to participate in a criminal case.
In addition to looking at the laws of the land, you must not forget about the context in which the lawsuit will be filed. You should think carefully about the levels of corruption in the jurisdiction; the general stance of the government as to human rights; and the physical or other dangers those involved with your lawsuit might face. If you have serious reservations about safety or fear of retaliation in a jurisdiction, it may be best to file and run the case from outside that jurisdiction.
Children in context: Children are particularly vulnerable to the potential negative effects of bringing lawsuits in their name, especially where cases involve schools they attend, places they reside, or close family members. Children may not have the resources or ability to leave dangerous situations, so you should be extremely vigilant in ensuring that child plaintiffs receive the security and support they need.
Bringing a case can be very expensive, so it would be wise to investigate court costs, legal fees, bond or security requirements, and other financial commitments involved in every potential jurisdiction. Legal costs might be prohibitively expensive in some jurisdictions, so it may make more sense to file your case in a jurisdiction where your resources would go further. You should also investigate whether legal fees would be recoverable if you won, meaning that the losing defendants would have to pay for your lawyers and court costs. Some jurisdictions provide for this arrangement specifically in human rights or general public interest litigation.