Clara Sigheti - How to sue to make a difference | People of Justice 2022 Bucharest
Author: Clara Sigheti
After more than 25 years of trials, in our family, we got used to receiving bad news from our lawyer. Often, some of them were almost absurd.
This is from an e-mail: The law has suffered successive changes and the changes were modified in turn. In the years of trials, two generations have died in my family, all the heirs of a house that was nationalized during the communist era. It was a house that my grandfather had claimed, while I was in primary school. Meanwhile, people with money and power got their properties and compensation, even for property that was not rightfully theirs. I studied law, partly out of curiosity, because I wanted how this was possible, but out of conviction, because I was sure I'd do a better job.
After a while, I became fascinated with strategic litigations. I was always thinking about the great impact they could have on our rigid justice system. Let me explain: strategic litigations are those legal actions that lead to social change and have an impact that goes beyond the individual cause that is on the court's list. I started to collect cases, in the same way others collect stamps or fridge magnets.
The next step was to see how strategic litigations look like in their homeland, so I went to the United States with a professional fellowship. There, I discovered that many of the principles we think are cast in stone in America are actually fights that were won in court. We all know this from the movies: you're under arrest, you have the right to court appointed counsel. However, what we don't know is that the right to be represented by a lawyer was won at the Supreme Court through a strategic litigation. Same story for women's equality in the eyes of the law and many others.
In America, regulatory progress is not an intervention accomplished by the lawmakers, when he feels it's the right time and that he's feeling kind because he had a great weekend and, on the way to the office on Monday, the traffic was fine. It's the result of coordinated, long-term processes that are very well organised, through which citizens demand rights and don't give up until they get them. Even though it rarely gets talked about, in Romania, we have strategic litigations, too, and they're done well. It's not a widespread phenomenon and, at any rate, it's not an area where we can say that we have expertise. That's why I am convinced that we need an NGO specialized in strategic litigations here, in Bucharest. In order to convince you, as well, I will show you, through a few examples, how legal action in a court can transform the entire society or, to put differently, how to sue someone to make a difference. In the first story I'll tell you, the ogre is the lawmaker who is making the situation of children with special needs more difficult. Everywhere in Europe, children with special needs go to school alongside neurotypical classmates, a good solution for them that diminishes social stigma and makes integration in society much easier.
But, in Romania, you couldn't do this, except if you demanded this right in court. Since not everyone can afford a lawyer, especially in families with special needs, many children were basically prevented by the law from enrolling into public schools. The heroine of this story is Mădălina Turza, the mother of a girl with Down syndrome, called Clara, just like me, who founded an NGO for the rights of children with disabilities and, thanks to it, she offered legal representation to the parents who couldn't afford the costs of a trial. So, the judicial system was faced with a situation that no one had expected.
Case after case where the plaintiffs demanded the same thing: the right to inclusive education for children with special needs. The battle was won after enough cases had accumulated in the courts. So, the lawmakers had no other option but to change the law. Now, parents can directly choose for a place in the education system for their child. This represents an extraordinary victory for the Romanian civil society. Another case I'd like to talk to you about today appeared as a result of the pandemic. Maybe you were fined, too, because the mask didn't cover your nose. Well, the ogre, meaning the lawmakers who decided the sanctions during the pandemic along with the ogres enforcing them, meaning the police, didn't take human rights into account. I'm not the one saying it, but the Constitutional Court. So, these sanctions were annulled. But, before achieving this, the NGO Expert Forum filed a series of requests for informations of public interest to see what the numbers looked like.
To see how many of sanctions enforced were fines, how many were warning, how big the fines were and so on. And surprise! Even though it requested this information based on Law 544, related to access to information of public interest, it didn't receive it. Why? Because the state, quite conveniently, didn't even collect this data. So, EFOR made the next logical step and sued by appealing the answers with legal action in each one of Romania's 42 courts. The final results aren't available yet and I'll leave it to them to make them public, when all the trials will be over. However, until then, I'd like to point out that this entire process of coordinated strategic litigations, spanning all the courts in the country, has successfully shown what we'd already known for a long time. Namely, that rulings given in different courts in identical cases and on the basis of the same law contradict each other in Romania. That is what we, legal experts, call: unequal application.
And that it was one of the biggest issues our judicial system is facing and which EFOR can now confirm with data. Anyone can turn to a court to defend his rights. This is not a utopia and it's not an unattainable ideal, but a fundamental right backed by the Romanian Constitution that needs to applied in concrete cases. Unfortunately, the trial my family was part of wasn't exactly fair and it wasn't settled in a reasonable amount of time.
We still have go further with our fight to ECtHR and we're still waiting to be compensated in Romania. But I keep thinking that things could look different from now on, even if we become bolder, if we join our forces for common causes and we start demanding our rights, not only by shouting in the cold in University Square, but also in the court, where it makes sense to go, if we face an injustice. I hope you've already realised that the happy end in this story is not one in which the ogre, meaning the lawmaker, is pierced by the sword of justice and falls down, forever defeated. I prefer the ending where the ogre is fine and where he's just one of the parts of a fair trial where the citizens have a chance to express their needs.
I'll finish with a plea to the Leaders of Justice community and any other organisation that is present here today, from civil society, to lay the foundation for an NGO, specialized in strategic litigation in Romania and to put the law to use for those who can't make their voices heard. Tell me what you think.
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The People of Justice 2022 shows were produced alongside Decât o Revistă, a team of journalists who believe in the transformational power of stories.
Together with over 1,000 viewers, we imagined what a more just Romania could look like through vulnerability, empathy and the power of example. In each city we brought on stage lawyers, journalists, civic activists and artists whose true stories about justice: how we achieve it, what it means for justice, education, the healthcare system or our cities.
