Understand and explore mechanisms available for continuing to pursue a client’s RSD claims when you feel that they have been erroneously denied due to procedural or factual issues. Where the government is the adjudicator, you may have the opportunity to find administrative appeals beyond or parallel to the government adjudicating office.
File an administrative complaint
A complaint mechanism should (or may) be available to allow your client to challenge the decision on the case.Identify available complaint mechanisms within the RSD government adjudicating office or the general governmental department or ministry where it exists. Complaints may rise, for example, on issues regarding a RSD officer’s conduct or bias, trends or evidence showing discrimination against your client, or other evidence that demonstrates procedural irregularities in the case. Explore how appeals or complaints in other administrative proceedings (i.e. family, tax, etc.) are made. You may be able to use the same or a similar mechanism to challenge the decision on your client’s case.
Another avenue to consider is judicial review of an administrative decision. Countries often have a system of review of executive and legislative actions through the court system. A court’s authority and its legal or statutory basis to adjudicate a case will vary widely from country to country and jurisdiction to jurisdiction. Note that in some common-law systems, judicial review may not exist, particularly for the purposes of challenging legislative authority.
In considering your options for judicial review, first understand the jurisdictional and procedural issues that will allow you to bring the action in court. A domestic court systems may lack the authority to review a case without the petitioner first exhausting the administrative remedies available. In other instances, the courts may have authority to review particular subject matter, depending on the legal or procedural issues, regardless of how the administrative proceedings have been exhaustive. Second, research and stipulate how your client’s particular issues will be treated by the court and specifically in your jurisdiction.
If you are not familiar with the domestic court system, it is highly advisable to consult with the local bar or practicing attorneys to co-counsel and/or help guide you through the court procedures. It is important to understand and communicate to your client what his or rights are through the judicial process, and also the timing and impact of the case on his or her legal status and general well being. Make sure to warn your client of any risks that might exist, including the potential lack of protection from non-refoulement, arrest or detention that exists during the judicial review process.
This is another channel through which to pursue complaints. If this institution exists in your country, it may be worth leveraging both when violations of RSD procedure occur, or in access to rights cases. The function of an ombudsmen is to act as a check and balance on government and public institutions, and can be invoked at any stage of a case.
International mechanisms may also be available if you have exhausted domestic appeal procedures, including regional human rights commissions, the UN Committee Against Torture, and other international bodies. For further information and advice on pursuing this avenue, refer to the Strategic Litigation chapter of the Toolkit.