Who can take legal action?

a) The Requirement of “Standing”

Before taking a case to court, it is important to establish that you have the right to do so. In other words, you need to check you have “standing” to bring the action (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 merits (the substance) of your claim.
Each legal system has its own law of standing. Whether the rules on standing are satisfied often depends on:

• Who is bringing the claim
• The type of case being brought or the remedy being sought

i) Who is bringing the claim?

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.

ii) What type of case is being brought? What remedy is being sought?

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 many countries, there is also a distinction between the standing requirements governing:

• Claims against individuals or companies; and
• Claims involving the country or public authorities

Frequently, the standing requirements for cases involving 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 public interest criteria before being allowed to proceed.

b) Standing to Bring PIL

The requirement to show a special, direct, or individual interest can be an obstacle if you are planning to bring a PIL case because PIL is directed at the wider public interest.

In some countries, NGOs 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.

Some countries also have different standing rules specifically for PIL. 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.

c) Determining if You Have Standing to Bring PIL

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:

i) A judicial decision

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

Examples

• 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 PIL 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.

a) Law Enforcement Agencies

The starting point is that in most countries criminal prosecutions are generally brought by a state agency, and that it is rare (or even impossible) for a private citizen or entity to initiate a criminal proceeding.

In principle, citizens or civil society groups can approach law enforcement authorities with strong and reliable evidence that an offence has been or is being committed, and they will take the case forward on their behalf.

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 criminal prosecution.

However, in the real world, law enforcement authorities may be unwilling or unable to take your case forward;

i) In many countries, there is simply not enough resources, law enforcement officials and prosecutors to effectively take cases forward in a reasonable amount of time.

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.

ii) In others, police may be unwilling to help, or outwardly hostile to you enforcing your rights, making it dangerous to even approach law enforcement authorities. This is particularly clear when your case concerns of actions of public officials or powerful individuals/groups in society

Example
The ECOWAS Community Court of Justice is currently hearing a case concerning a woman subjected to domestic violence by her husband, a policeman. This case is being brought to a regional court because law enforcement authorities in Nigeria were unwilling to investigate and prosecute in a case involving a member of their police force.

iii) In most systems, 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. This can be a product of corruption, disinterest or contempt towards the enforcement of your rights.

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

Where law enforcement agencies are unable or unwilling to take your case, you may be able to bring a “private prosecution” to secure justice.

b) 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”.

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).

Private prosecutions can be a vital way in securing justice when law enforcement authorities are unable or unwilling to take your case.

Who can bring a private prosecution depends very much 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 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.

Example
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.

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

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

Example
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.

Example
In France, victims have a right to bring civil actions for harm suffered as a result of the offence. An anti-corruption group, 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.

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.

Example
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.

Example
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.

In circumstances where State law enforcement authorities are incapable or unwilling to prosecute, this creates major gaps in access to justice.

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?”