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Who can take action?

 

Contents:

 

Access to (civil / administrative) justice and the issue of standing

Derivative actions, Public Interest Litigation and other collective claims

an overview of the exceptions to the traditional rule of standing

What is PIL?

What is the difference between PIL and judicial review proceedings?

What is the difference between PIL and other types of collective claims?

How does PIL work?

Other considerations: Criminal remedies and public interest prosecution

What is a private prosecution?

Who can bring a private prosecution? Who has the required standing?

Legally authorized public interest groups in relation to the prosecution of certain offences

The victim

Private prosecution by bona fide litigants

Common law systems

Spanish law

 

 

 

 

Who can sue?

 

What category of people or organisation can actually bring a litigation?

 

 

Access to (civil/administrative) justice & the issue of standing

 

  • The main legal barrier that obstructs access to justice is the legal doctrine of “standing to sue” (also known as the locus standi) – which is a restriction on who may bring an action.

 

  • Each legal system has its own law of standing – depending on the remedy sought and/or the cause of action (contract-based, tort….) contemplated, some jurisdictions require the plaintiff (also known as the claimant or complainant) to show a “special interest” or a “direct and personal interest” in the matter, others the “violation of a right” or an “invasion of a legally protected interest” - either way, locus standi is an admissibility condition that acts as a gatekeeper for bringing actions: if the petitioner does not establish standing in the subject-matter, he will be rejected by the judicial body on formal grounds, without consideration of the merits of the case.

 

  • Moreover, a party may only assert his or her own rights and cannot raise the claims of a third party who is not before the court.

 

  • In other words, in principle, only the individuals (either individually or collectively/through a class) and legal entities that can demonstrate a genuine special interest in the subject matter are entitled to approach a court of law.

 

  • There are however exceptions.

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Derivative actions, Public-Interest Litigation and other collective claims: an overview of the exceptions to the traditional rule of standing

 

Derivative actions & Public Interest Litigation

 

  • In most jurisdictions, commercial laws provide that any shareholder can bring a civil suit on behalf of the company for a breach of a fiduciary duty by the board whenever the company refuses to take up legal action: this is called the ut singuli action or derivative action. The shareholders are not suing in their own interests as individuals, but are instead suing on behalf of the interests of the whole company; thus, any monetary compensation is due to the company.

 

  • When such derivative actions involve matters of public interest, they are referred to as Public Interest Litigation (PIL) - also called “actio popularis” in reference to the Roman institution.[1]

 

What is PIL?

 

  • PIL is a right given to public-spirited individuals or civil society groups to supplement the Ministère public (in civil law countries) or the Attorney-General (in common law countries) in their function as guardians of the public interest[2] and to institute proceedings to vindicate matters affecting the whole society.

What is the difference between PIL and judicial review proceedings?

 

  • PIL ought not to be reduced to judicial review of administrative actions: in fact, even though many PIL take the form of judicial reviews[3]; they may also be used to sue private entities.

 

What is the difference between PIL and other types of collective claims?

 

  • In some jurisdictions, groups may be entitled to bring claims in the interest of their members (either through an association, a class or a representative action): the group is acting on behalf of several victims and seeks remedies for their individual harms. Such claims aim at the protection of homogeneous individual rights (contrary to PIL which involves public rights). That being said, PIL is sometimes defined broadly and includes all sort of actions taken on behalf of the underprivileged or the oppressed to vindicate their legal rights and to push for social change. These actions may be regarded as public-private interests’ ligation since they aim both to seek concrete remedies for individuals suffering personal harms and to bring about change in public policy. Such proceedings are very common in emerging economies such as India where inequalities remain important despite rapid economic and social growth.

 

  • Likewise, groups may be entitled to take actions where their organisation’s collective interests are affected. When the interests in question involve matters of public interest (such as the protection of the environment), the action may be considered as a PIL since, most often, the remedy ultimately benefits the public at large (e.g. an injunction order to stop the damage being caused to the environment).

 

  • In definitive, a ‘genuine’ PIL (similar to the roman “actio popularis”) involves a public injury which is redressed through a remedy that aims to benefit the whole society. It usually involves the following two components:

 

ü  The action aims at redressing a public injury - be it committed by a public body or a private entity - and/or to enforce a public right ;

 

ü  The petitioner is acting bona fide; he is not acting on its own interest but in the interest of the society as a whole. No personal gain is sought - tough the petitioner may be granted a compensation.

 

  • Although genuine PIL may not be available in many jurisdictions, there are PIL-like tools available in most domestic jurisdictions.

 

How does PIL work?

 

  • PIL is based on relaxed rules of standing: individuals and groups are granted standing even though they do not have a concrete and personal interest in the matter.

 

  • Genuine PIL does not require the plaintiff to show any interest beyond the one of the public. However, most legislations require the petitioners to show a “sufficient interest”: standing usually stems from citizenship or taxpayer’ status (individual litigant) or from the purpose of the group: the conduct complained of impairs the collective interests of the group as expressed by its bylaws or articles of association.

 

  • The basis for PIL may be found in:

    • A judicial decision - standing results from a flexible interpretation of the rules of standing à Some examples:

    • Some state courts in the US have recognized that where the question is one of public right and the object of the action is to enforce a public duty, the petitioner needs not show that he has any special interest in the result, since it is sufficient that he is interested as a citizen or taxpayer in having the laws executed and the duty in question enforced (See: Mackey v. McDonald, 504 S.W.2d 726, 731 (Ark. 1974); City of Chicago ex rel. Cohen v. Keane, 64 Ill. 2d 559, 561, 357 N.E.2d 452, 454 (1976); State ex rel. Nimon v. Village of Springdale, 6 Ohio St. 2d 1, 5, 216 N.E.2d 592, 597 (1966)).

    • In France, since a landmark decision rendered by the Supreme Court on September, 18 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 interests whenever they are infringed by the conduct complained of (Cass, 1ère Civ. Pourvoi n° 06-22.038). Here again, the decision was based on a flexible interpretation of article 31 of the French Civil Procedure code which provides that “The right of action is available to all those who have a legitimate interest in the success or dismissal of a claim”. Since this ruling, 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) for creating air, water and noise pollution during the process of unloading, washing and transporting iron ore. The case was brought before Jjiangsu Province Wuxi City intermediate court which ruled it admissible in July 2009: the decision was based on a flexible interpretation of article 108 of Chinese Civil Procedure Law which requires the plaintiff to show “a direct interest” in the case. On September 22, 2009, 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.

    • An explicit statutory or constitutional provision - the provision may cover any matters of public interest (1) or be limited to certain matters considered to be of public interest (2)

      • (1) àSome examples:

      • In South Africa, PIL is a constitutional right; according to article 38 of the Constitution : “anyone acting in the public interest … has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights”. 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 Aqdo Civil Pziblica”) of 1985 authorizes registered civil society organizations, to file public civil actions (“aqdo civil pzblica”) to seek remedies for harms caused to the public interest. Initially, public civil actions were limited to actions aimed to “protect the environment, the consumer and properties and rights of artistic, aesthetic, historic, touristic and landscape value”, it was latter extended to cover any kind of “diffuse and collective interests."

      • (2) In most jurisdictions, there are special provisions allowing public-spirited individuals and/or public interest groups to bring claims in relation with the protection of particular matters of public interest – it being specified that some provisions may restrict the right to PIL to associations officially recognised by the authorities or require a certain number of years of existence. Some examples:

      • In the US, environmental citizen suits (which may be brought by either individuals or citizens groups) are authorized under major federal statutes, including the Clean Water Act(CWA)(33U.S.C. § 1365), Clean Air Act(CAA)(42U.S.C. § 7604), Resource Conservation and Recovery Act(RCRA) (42U.S.C. § 6972), and Surface Mining Control and Reclamation Act(SMCRA) (30U.S.C. § 1270).

      • In Australia, under s 475 of the Environmental Protection and Biodiversity Conservation Act, an “interested person” (a citizen or a registered NGO) may apply to the Federal Court for an injunction restraining another from committing an offence or otherwise contravening the Act or regulations.

 

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Other considerations: Criminal remedies & public interest prosecution

 

  • Nothing precludes citizens or civil society groups from approaching enforcement authorities (either through a formal “notitia criminis” or informally) with strong and reliable evidence that an offence has been/is being committed. In theory, this would form the basis of an investigation and would, depending on the strength of the evidence, initiate a case.

 

  • In the real world however, a central impediment to law enforcement in most jurisdictions is to be found in prosecutorial discretion: i.e. the fact that public prosecutors enjoy broad discretion in relation to the institution of criminal cases.

 

  • Nevertheless, in some countries, if the public prosecutor refuses to open an investigation and/or decides to drop a case despite being presented with credible evidence, civil society may be able to prevent such cases from being closed down by bringing a private prosecution.

 

What is private prosecution?

 

“The individual who wishes to see the law enforced has a

remedy of his own: he can bring a private prosecution.

his (…) remains a valuable constitutional safeguard against

inertia or partiality on the part of authority”

Lord Wilberforce; Gourier v. Union of Post Office Workers, 1978; AC 435

 

  • Private prosecution is the right for a private party to institute a criminal case by filing a private criminal complaint 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? Who has the required standing?

 

  • Legally authorized public interest groups in relation to the prosecution of certain offences: Private-Public interest prosecution under statutory right. Some jurisdictions allow registered groups to bring criminal charges in relation to matters affecting public interests. In most cases, groups are entitled to take action without the need to establish any prejudice to the organization’s interests; their standing stems from the legal provision that established the right to private prosecution. Some examples:

    • In South Africa, according to section 8 of the Criminal Procedure Act (CPA)“Anybody upon which or person upon whom the right to prosecute in respect of any offence is expressly conferred by law, may institute and conduct a prosecution in respect of such offence in any court competent to try that offence”. 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 with the right to initiate private prosecution in relation to certain matters of public interest. Most statutory rights are provided by articles 2-1 to 2-21 of the Criminal Procedure Code (CPC); there are also provisions in several codes (consumers’ code, environmental codes …) and laws.

 

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

    • In South Africa, section 7(1)(a) of the CPA provides that “In any case in which a Director of Public Prosecutions declines to prosecute for an alleged offence any private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered in consequence of the commission of the said offence”. This interest must be sourced in an injury suffered by the private prosecutor and caused as a result of the offence in question. This has been narrowly interpreted: it was held in Attorney-General v Van der Merwe and Bornman that the “object of the phrase ‘substantial and peculiar interests' in the context of a private prosecution was clearly to prevent private persons from arrogating to themselves the functions of a public prosecutor and prosecuting in respect of offences which do not affect them in any different degree than any other member of the public; to curb, in other words, the activities of those who would otherwise constitute themselves public busybodies” (1946 OPD 197 at 201). Moreover, section 7(1)(a) of the CPA has been interpreted to apply only to natural persons (Barclays Zimbabwe Nominees (Pvt) Ltd v Black 1990 (4) SA 720 (A)).

    • In France, according to article 2 al.1 of the CPC: “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.” How about an anti-corruption group claiming an infringement of its organization’s interests? The argument may seem far-fetched and yet it worked in the “Biens Mal Acquis” Case: While anti-corruption groups do not have any statutory right to bring private prosecution in relation to the pursuit of corruption offences, such groups can however be entitled to take action provided that they can demonstrate in accordance with the provisions of article 2 CPC that they have suffered a “personal and direct damage” as a result of the offence. Indeed, French courts have admitted on various cases that a non-legally authorized association could be ruled admissible as long as the offence being pursued directly impairs the interests the association assigned itself to defend. Based on these case law, it was argued that Transparency International France (TIF) had suffered a “direct and personal prejudice” as a result of the alleged money laundering activities of the Bongo, Sassou Nuesso and Obiang clans given that such offences impairs TI France’s core mission. In a landmark decision rendered in November 2010, the Cour de Cassation (the highest court in France) ruled that TI France had the required standing to pursue the case which entailed the launch of a formal judicial investigation. This case shows that there is room for action where a legal argument can be made.

 

  • Private prosecution by bona fide litigants - In some countries, private prosecutions can be brought by anyone in relation to any offence: under this scheme, litigants are not seeking compensation but only to enforce the law and as a consequence, the petitioner does not need to demonstrate having suffered a prejudice of its own to be entitled to act.

    • Common law systems (the UK, Australia, Honk-Kong, Singapore): In common law jurisdictions every citizen has exactly the same right to institute proceedings as has the prosecuting authority àany person may institute private prosecution in respect of any indictable offence. However, in practice only a minuscule portion of prosecutions is actually brought by bona fide litigants. This is not surprising because a private prosecutor would not enjoy the same powers of investigation as law enforcement authorities and private citizens typically lack the financial means and legal expertise necessary to launch successful prosecutions. 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: indeed, the public prosecutor may, in the exercise of his discretion, step in and take over the conduct of any private prosecution, to either continue with the proceedings, or to discontinue it.

    • Spanish law: it offers the most far-reaching provision since article 125 of the Spanish Constitution guarantees every citizen the right to bring criminal charges through the “acusacion popular”. According to Spanish criminal law (“Ley de Enjuiciamiento Criminal” – LEC, articles 101 and 270), any Spanish citizen or NGO with “sufficient interest” can file a criminal complaint (“querella”) before an investigating magistrate in order to launch criminal proceedings. Acusacion popular enabled the Spanish organization Asociación Pro Derechos Humanos de España (APDHE) to successfully launch a money laundering case in Spain (See APDHE v. the Obiang family)

 

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REFERENCES

 

 

 

[1] Institution that dates back to ancient Rome, where every citizen could bring before a judge matters of public interest. Actio popularis is a generic term that covers a variety of actions recognized in Roman law, the common denominator being the award of a legal standing to any citizen regardless of any personal interest. His standing arises from the mere fact of belonging to the Roman people (i.e. citizenship). By bringing an action, the plaintiff was acting both in the public interest and his own interest as a citizen. The condemnation, however, was pronounced in favour of the Treasury, not the popular applicant.

 

 

[2] In most jurisdictions, the public prosecutor or his equivalents (the Attorney general in Common laws countries) have inherent authority to defend the public interest: they are the proper plaintiffs when it comes to defending public rights.

 

[3] In most countries, review proceedings are usually open to wide range of petitioners through the application of the “sufficient interest test” or any other equivalent liberal approaches so that in most jurisdictions, groups or individuals with no direct interest who raise an issue of public importance are generally considered to have sufficient standing àSee e.g.: Corner House Research and another v. Director of the Serious Fraud Office.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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