Reflections on pro bono and human rights litigation in the LGBT+ movement

Why is this an important case for ILGA-Europe to take on (Coman and others v Romania)??

Arpi: ILGA-Europe have been involved in supporting the case from the very beginning. This case could have a strategic impact on the standard setting at the EU level and on the protection of rights of same-sex spouses across the EU.?Recognising the potential of the case and the prospects of it reaching the Court of Justice of the European Union (CJEU), we led a joint submission together with four other organisations (the AIRE Centre, the European Commission on Sexual Orientation Law (ECSOL), FIDH (Fédération Internationale des Ligues des Droits de l’Homme) and the International Commission of Jurists (ICJ)) before the Constitutional Court of Romania in 2016. Having a judgment from the CJEU would mean?all?same-sex couples in a situation similar to that of the applicants in?Coman?would benefit from enjoying equal rights to freedom of movement. It would have a positive impact on thousands of couples, many years down the line.?Finally, two years later in 2018 the CJEU delivered the landmark judgment of?Coman and Others!?This was a much-awaited ruling which clarified that the term spouse within the meaning of Directive 2004/38 was gender neutral and applied equally to same-sex spouses.?

We have already started seeing the impact of this one strategic litigation case. Since then, the ruling has been applied in domestic high courts, for instance by the?Lithuanian Constitutional Court?in a case concerning temporary residence permit in Lithuania to a foreign national in the event of family reunification, or in a case very similar to?Coman?by the?Bulgarian Supreme Administrative Court.??

However, while the standards established by the judgment is an achievement worthy of celebration by itself, we also see that it has stayed on the paper in many EU Member States, most regrettably so – in Romania where the case had originated.?Thus, the applicants turned to the European Court of Human Rights in the hope of finding justice and a means to ensure the implementation of the judgment.?You can hear our take with Adrian (one of the applicants) about the journey of the case in the ILGA-Europe podcast?episode on Coman case?from earlier this year.

Why did Dentons decide to support this case??

Lamin:?We are fortunate to have some real leaders within our firm on LGBT+ rights. People who have played a major role in national LGBT+ rights movements all over the world. People like?Evan Wolfson?who is the founder of the US marriage equality campaign,?Freedom to Marry, Perry Zizzi, who is a founder of the?Romanian Diversity Chamber of Commerce?and Igor Ostrawski who has been a leader on LGBT+ rights in Poland for a number of years. It is thanks to these colleagues and many, many more that we are blessed to have an organizational culture that is highly conducive to engaging on LGBT+ legal advocacy work. When you have senior members of the firm loudly and publicly talking about the importance of LGBT+ rights and then backing that up through their own actions and personal histories, it makes it an obvious choice for us to engage on these issues through our pro bono work. We felt it was important to engage on the Coman case in particular because it is a case that has the potential to be really important for the right to marriage equality for same-sex couples in Central and Eastern Europe and we believed that we could add value to our civil society partners working in the region.??

What is ILGA-Europe’s role in coordinating interventions before the ECtHR??

Arpi: Big part of ILGA-Europe’s strategic litigation work is supporting development of European human rights law. We do it, among other methods, by submitting third party interventions before the European Court of Human Rights.?These interventions are intended to assist the Court with broader contextual information, pointing to systemic issues in law and states’ obligations under the international human rights law.?To this end we provide the court with international and comparative law perspective and developments in a relevant area to support the Court in the?“proper administration of justice” (Article 36 (2) ECHR).?

In our submissions we often collaborate with partner organisations to submit joint third party interventions.?One of the reasons for making the submission jointly is to show the importance of the case in human rights terms.?In addition, given the various legal issues arising in the cases before the Court, it also means that we bring our expertise on different subjects.

How does Dentons contribute to strategic litigation?

Lamin:?In this particular case we engaged several colleagues from different offices to support a coalition of civil society organizations intervening before the European Court of Human Rights. We provided research and drafting support in preparing a number of complementary third party interventions providing the Court with a wide range of comparative legal analysis. Thanks to our significant global footprint we were able to comparatively explore various important aspects in relation to this case. In particular, we looked at the many positive experiences countries around the world have had with equal marriage legislation. We looked at the specific rights violations and the obstacles to access to justice faced by LGBT+ families in Central and Eastern Europe and we also comparatively explored the jurisprudence of the Court of Justice of the European Union and the European Court of Human Rights.?

We were fortunate to have colleagues who have already amassed a great deal of experience in relation LGBT+ rights but we also engaged some colleagues in this work who were new to this area of law. I think it’s important to stress that in order to become genuinely useful to our civil society partners, it is critical to specialise in this kind of work, with the aim of building up expertise over time. At Dentons we have had a consistent focus on LGBT+ rights for many years now. We have also - including me personally - been making a consistent effort to get greater experience in relation to the European Court of Human Rights. Over time these efforts have helped us to become a more effective partner to the many LGBT+ NGOs that we support.????

How can law firms support strategic litigation, particularly in drafting of third party interventions??

Arpi:?Pro bono legal support from law firms plays a crucial role in boosting the capacity of NGOs, like ILGA-Europe, to conduct strategic litigation. Given the limited resources and capacity of civil society organisations in the area of litigation, we are able to submit many more interventions than we would have otherwise managed.?This is especially useful in third party intervention submissions as there is only a short window of three-four weeks following the European Court’s notice.?From the law firm side, given the diverse background of lawyers, they have the potential to conduct the comparative research in an efficient way.?In addition, developing expertise and experience of working on third party interventions within the firms makes such collaborations in the future more productive.?

It was great to collaborate with Dentons and receive their support in legal research and drafting of the submission in the case of?Coman and Others?before the European Court.?The skillful work by?Lamin?and?Nicoletta, who brought in their invaluable expertise in EU law, the interplay with European and international human rights law, and Court’s own case-law to build on, made it particularly constructive.?As I’ve reflected on?what makes pro bono collaborations successful, this joint effort ticked all the boxes!?

I hope our submissions will help the Court to place the case in the broader picture of the struggles the same-sex couples face in Europe. A positive judgment from the Court will be another step forward to bring about the necessary legal change for the applicants, and other couples in a similar situation to enjoy their freedom of movement and recognition as spouses in Romania and across the EU.?

What are your future expectations regarding pro bono and human rights litigation in Europe???

Lamin: I firmly believe that deeper specialization and greater professionalization is the only way forward for pro bono in Europe. Voluntarism is a wonderful thing but it has many well known flaws which must be addressed if pro bono is to become a meaningful public good instead of a tokenistic private gesture. The most significant examples of pro bono litigation in Europe have one thing in common; the involvement of world-class leading professionals who have extensive expertise in relevant areas of legal practice and are willing to dedicate significant time to pro bono litigation. My personal view is that, on the one hand, we will see more firms building up in-house human rights litigation expertise (at both national and European level) within their disputes practices (i.e. where they have the internal resourcing to do so without this becoming a drain on commercial work). On the other hand, we will see pro bono managers increasingly developing more substantive expertise themselves in order to be able to play a more effective intermediary role between the pro bono lawyers and civil society organizations. Relatedly, I hope we see firms hiring leaders directly from civil society into the pro bono role. These professionals, who already have the experience of coordinating multijurisdictional legal advocacy campaigns in Europe and beyond, have invaluable expertise which law firms can hanness to professionalise pro bono and scale the impact of commercial lawyers in relation to the public interest.????