legal aid and explicit cost recovery could help especially in less spectacular cases where NGOs
or pro bono working law firms do not take the case.
Generally speaking, individual costs will be higher for individual complaints and joinders be-
cause costs are not necessarily shared between different complainants72 and because one can
assume that group or collective complaints allow for hiring more expensive, but better law firms.
Likewise, group or mass litigations tend to raise media attention and therefore are attractive for
NGOs or pro bono experts to get involved. The expected costs of the complaint vary according
to the different allocation rules and the practices of the judicial bodies.
The different incentives of the individual will now be scrutinized in detail. If individual rights of
an individual are infringed, it will be ceteris paribus more apt to file a complaint than if a group
right or collective interests are infringed, since the loss of benefit by an infringement is assumed
to be greater if an individual (habeas corpus) right is violated and thus the private benefit from
the expected court decision will also be correspondingly greater. Furthermore, in a case where a
purely individual right is at stake, the court decision may be to a greater extent a private good
(except for setting a precedent and providing for the legality of state behavior, which are irrele-
vant for the individual calculus). In this case, only where the individual expects costs to be very
high, the individual will not complain. If the individual is represented by an NGO or a law firm
pro bono, the (monetary) cost risk is usually shifted to those: this may be the reason why a lot of
cases brought to international judicial bodies show that pattern.
In contrast, if the claim is about group rights or rights with collective aspects, the court decision
is to a greater extent a collective good, as there are a huge number of individuals affected. There
are huge incentive obstacles to provide a collective good, as the individual, if she does not have a
very high preference for the good, will be inclined to take the position of a free rider and wait for
others to provide the collective good. This explains also why actiones populares by individual
complainants are less probable (NGOs have different incentives) - and thus the fear of a court
overflow by actiones populares by individuals is not well founded.73 In any case, there are other
legal mechanisms to deter frivolous complaints.74
Regarding joinders initiated by an individual, that is, complaints alleging many individual viola-
tions on a larger scale, one has to differentiate between initial individual costs of gathering the
other alleged victims for bringing a complaint (pre-trial costs) and the general individual costs as
described above. The initial hurdle for forming a joinder is high in the beginning, until the initi-
ating individual finds some form of cooperation, which is difficult due to collective action and
informational problems. The costs are higher in cases where there is no defined group (unorgan-
72 If the joinder is formed by the complainants, cost sharing usually occurs by taking one lawyer. In case the
joinder is mandated by the judicial body that does not apply. But in all joinders costs of experts and witnesses
may be divided.
73 Of course, ”political entrepreneurs” or gripers may still bring complaints, but those should be few and can
always be dismissed.
74 Abuse provisions, which fulfil a filtering function because they allow for a declaration of inadmissibility, are
found in all treaties analyzed here.
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