What is strategic litigation?

What is strategic litigation and why does MDAC do it?

Litigation means representing an individual or group of people in a court. Strategic litigation means selecting cases for their impact beyond the individual client. People with psycho-social (mental health) or intellectual disabilities can approach MDAC directly. Cases are also referred to us by local disabled people’s organisations, human rights NGOs, service providers, or lawyers. We do not run a legal aid service, so we cannot take every case, because we need to direct our small resources to selecting cases which can help many other people.  

The criteria we apply in assessing cases are contained in the acronym SPARR. This stands for Strength, Potential, Added value, Relevance and Resources! Let me explain:

  • STRENGTH. Is the case a strong one? Is there strong evidence to support the claims which the client wants to take? There is little point us spending our time and energy on a case where the evidence is weak. Does the case present a reasonable likelihood of success?
  • POTENTIAL. Does the case have the potential to help other people? In other words, could it advance the case-law in the country itself (domestic level), at the regional level (for example, European Court of Human Rights) or international (for example UN Human Rights Committee) jurisprudence? Will the case lead to law reform (which is one of our organisational objectives)?
  • ADDED-VALUE. Is the case one in which MDAC can add value through our expertise in international law related to people with disabilities, our ability to bring pro bono support from a law firm, or by acting as the applicant in a collective complaint where we have standing to do so (as, for example, in collective complaints to the European Committee on Social Rights)? In certain cases, MDAC will play an off-record advisory role for lawyers or NGOs.
  • RELEVANCE. Is the case relevant to one of our six human rights goals? These are: freedom from torture and ill-treatment, the right to live in the community, the right to legal capacity, access to justice, the right to political participation and the right to inclusive education.
  • RESOURCES. Does MDAC have the human and financial resources to litigate the case through domestic courts, and, if necessary, to a regional or international body?

Lycette Nelson, Litigation Director speaks about MDAC's strategic litigation plans in Africa at an event organised by the New York City Bar Association in early 2013.

How does strategic litigation help people other than the applicant?

A successful test case will change laws or policies within a given country or even at a broader regional or international level. We can look at some examples to see how this might happen.

Pavel Shtukaturov The case of Shtukaturov v. Russia involved a young man called Pavel Shtukaturov. He has a psycho-social disability and was placed under guardianship without even knowing it. His case was representative of a wide systemic problem not only in Russia, but in many countries in Europe. The European Court of Human Rights was very critical about the guardianship system. The successful outcome of case helped the Constitutional Court to strike down areas of the Russian law on guardianship hearings that ensured the person whose rights were at stake could have notice of and take part in the proceedings.


Lukáš Bureš was another young man whose case MDAC and our Czech NGO partner the League of Human Rights litigated before the European Court of Human Rights. After Mr. Bureš overdosed on medication that had been prescribed by a psychiatrist, he became disoriented and was picked up by the police and taken to a sobering up centre. He was immediately strapped to a bed and was kept in restraints for many hours, causing him long-lasting pain, numbness and restricted movement in both arms. He is a cello player and even months after the restraints were applied, the injuries interfered with his ability to play his chosen instrument. The European Court issued a major judgment finding that the use of restraints constituted inhuman and degrading treatment and that the State had failed in its obligation to investigate and prosecute those responsible. The Court’s judgment articulated for all Council of Europe states that restraints must be a measure of last resort to be used only to prevent harm to the person or his surroundings; this must be done only under close supervision and the reasons for the initial application and continued use must be thoroughly documented. In addition, the Court said that States have an obligation to conduct a thorough and effective investigation of charges of ill-treatment and to prosecute those responsible.

The case has already had a ripple effect at the international level: the UN Special Rapporteur for Torture cited the case in his report to the UN Human Rights Council in March 2013. 

Cases like the two above not only bring remedies and compensation for the individuals concerned, but result in changes to laws and policies that affect many other people. In addition they bring attention to human rights violations that often go hidden and make the public aware of the types of abuses people with psycho-social and intellectual basis face on a daily basis. 

Lukáš Bureš

What is the role of the individual in strategic litigation?

People often think that litigation that is strategic might somehow take advantage of the client. However, choosing cases for their overall impact does not change the way we represent clients. Litigation is the only form of advocacy which is client-driven. The individual is the centre of every case, even if the litigation is aimed at achieving a strategic goal. MDAC works with lawyers who take instructions from their clients. We have had cases where the clients have decided against our advice, for example, not to settle a case by accepting payment from a government, but rather proceed to trial, but we always respect the decision of the client.

Different clients have different goals in litigation. Many seek recognition by courts that their rights have been violated. Others want monetary compensation. Clients may seek restoration of rights that have been taken away, such as having their legal capacity restored or being able to live in the community if they have been institutionalised. MDAC continues to represent clients after the strategic goal has been achieved because we believe that achieving what the client ultimately wants from litigation is crucial to our mission. Thus, for example, we are regularly engaged in cases regarding restoration of legal capacity or compensation in cases where violations have already been established (these cases sometimes go on for several years after the strategic case is over).

What are some of the issues that MDAC is currently litigating and what does MDAC hope to achieve through them?

We are currently helping clients who have been denied the right to live in the community, the right to legal capacity, access to justice, freedom from torture and ill-treatment, the right to have families and raise children, the right to an inclusive education and the right to be free from discrimination. We see strategic litigation as one of the most important means available to people with disabilities to advance their rights and to hold States accountable for violating those rights. If courts recognise human rights violations, then abuses will become less tolerated by society. Governments will be forced to change the law to allow people with any disability the right to exercise all of their rights on an equal basis with others. In turn, more people with disabilities will be empowered to assert their rights through the courts.

Lycette Nelson welcomes your comments and questions. You can reach her at mdac@mdac.org.


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