THE JUDICIAL SECTOR IN LATIN AMERICA & THE CARIBBEAN:

ELEMENTS OF REFORM

Maria Dakolias

Judicial Sector Specialist

April 1996

Forthcoming: World Bank Technical Note

April/May 1996

TABLE OF CONTENTS

FOREWORD

ABSTRACT

PREFACE AND ACKNOWLEDGMENTS

EXECUTIVE SUMMARY

I. INTRODUCTION

II. THE GOALS OF JUDICIAL REFORM

III. JUDICIAL REFORMS IN LATIN AMERICA AND THE CARIBBEAN

JUDICIAL INDEPENDENCE

Judicial Appointment and Evaluation Systems

Disciplinary System

Recommendations

JUDICIAL ADMINISTRATION

Court Administratio

Judicial Budgets

Court Facilities

Case Administration

Recommendations

PROCEDURAL CODES

Recommendations

ACCESS TO JUSTICE

Alternative Dispute Resolution Mechanisms

Court Costs

Legal Aid

Small Claims Courts

Other Barriers to Access

Gender Issues

Recommendations

LEGAL EDUCATION AND TRAINING

Recommendations

BAR ASSOCIATIONS

Recommendations

IV. IMPLEMENTATION OF A JUDICIAL REFORM PROGRAM: POLICY

RECOMMENDATIONS

REFERENCES

FOREWORD

The countries in Latin America and the Caribbean are emerging from

a period of major change and adjustment. These recent changes have caused a

rethinking of the role of the state. There has been greater reliance on markets

and the private sector with the state acting as an important facilitator and

regulator of private sector activity and development. However, public

institutions in the region have been unable to effectively respond to these

challenges. In order to support and encourage sustainable and equitable

development, Latin American and Caribbean governments are engaged in

institution building which will provide greater efficiency, functional autonomy

and improved service. The judiciary is a necessary public institution which

should provide equitable, expeditious and transparent dispute resolution to the

citizens, economic agents and the state. However, in many countries in the

region there is a need for reform in order to improve the quality and efficiency

of the administration of justice. This in turn will foster an enabling

environment that is conducive to trade, financing and investment.

The judiciary in many parts of the Latin American and Caribbean

region has experienced lengthy case delays, extensive case backlogs, limited

access by the population, a lack of transparency and predictability in court

decisions and weak public confidence in the judicial system. This inefficiency

in the administration of justice is a product of many obstacles. These include a

lack of independence of the judiciary, the inadequate administrative capacity

of the courts, deficient case management, a shortage of judges and lack of

training, noncompetitive personnel practices, expenditure control systems that

lack transparency, inadequate legal education and training, weak enforcement

and sanctions for unethical behavior, lack of alternative dispute resolution

mechanisms, and cumbersome laws and procedures. This technical note

discusses some of the elements of judicial reform while providing examples of

reforms in the region. It is my hope that it will assist governments,

practitioners, researchers and World Bank staff in developing future judicial

reform programs.

Sri-Ram Aiyer

Director

Technical Department

Latin America and Caribbean Region

ABSTRACT

The Bank has been a relatively new participant in judicial reform

with a number of projects under implementation and preparation, and even

more being contemplated. The majority of the Bank's work has been in Latin

America; consequently the Bank's work in this area is being examined as other

countries throughout the world only now begin major reform efforts. The

Bank's experiences have made it clear that there is a need to define the

elements of an overall judicial reform program which can be adapted given the

country-specific needs. As a result, it is important for the Bank to develop a

coherent approach to judicial sector projects since governments from around

the world are increasingly asking the Bank for assistance in the reform

process. This paper proposes a program for judicial reform which specifically

addresses the main factors affecting the quality of court services, its

monopolistic nature and the resultant inefficiency. The reform program also

addresses the economic and legal causes at the root of an inefficient and

inequitable judiciary. While an exhaustive list of reform measures cannot be

provided, this paper discusses the main elements necessary to ensure an

equitable and efficient judiciary. The basic elements of judicial reform should

include measures with respect to guaranteeing judicial independence through

changes to judicial budgeting, judicial appointment, and disciplinary systems

improving court administration through adoption of case management and

court management reforms; adopting procedural reforms; providing alternative

dispute resolution mechanisms; enhancing the public's access to justice;

incorporating gender issues in the reform process; and redefining and/or

expanding legal education and training programs for students, lawyers and

judges.

PREFACE and ACKNOWLEDGMENTS

This report was prepared under the Public Sector Modernization Unit

of the Technical Department in the Latin America and the Caribbean region.

The Public Sector Modernization Unit has been providing support and advice

to judicial reform projects in the region, and this report is designed to compile

the different experiences of the region as a way to assist future judicial reform

efforts. The report especially benefited from the support of Mr. Malcolm D.

Rowat, Manager of the Public Sector Modernization Unit, whose valuable

direction and comments were instrumental in bringing this report to

completion, as well as the support of Mr. Sri-Ram Aiyer, Director of the

Technical Department. The author is thankful to Denise Manning-Cabrol for

her research assistance during the preparation of this paper, and to the Legal

Department and Bryant Garth for their valuable comments and suggestions

during the various drafts of this report.

EXECUTIVE SUMMARY

The purpose of this paper is to outline some of the elements of

judicial reform that should be considered during a country specific review as

well as during the design of a judicial reform program. While an exhaustive

list of reform measures cannot be provided, this paper discusses the main

elements necessary to ensure an equitable and efficient judiciary. These

elements taken as a whole are designed to improve the efficiency and

effectiveness of the judiciary--that is, its ability to resolve conflicts in a

predictable, fair and timely manner. An effective government requires

functioning legal and judicial institutions to accomplish the interrelated goals

of promoting private sector development, encouraging development of all

other societal institutions and alleviating poverty. The paper draws upon the

reforms of the Latin America and Caribbean Region where the Bank has had

its first experience as well as includes experiences from many OECD

countries. However, these experiences will have relevance for other regions

contemplating reform.

As the Latin American and Caribbean Region continues the process

of economic development, greater importance is being given to judicial reform.

A well-functioning judiciary is important for economic development. The

purpose of any judiciary of any society is to order social relationships and

resolve conflicts among these societal actors. Currently the judiciary is unable

to ensure predictable and efficient conflict resolution to enforce individual and

property rights. It is unable to meet the demands from the private sector and

the public at large, especially the poor. Given the current state of crisis of

Latin American and Caribbean judicial systems, the goal of the reform efforts

is the promotion of economic development. Judicial reform is part of the

process of redefining the state and its relationship with society, and economic

development cannot continue without effective enforcement, definition and

interpretation of property rights. More specifically, judicial reform is aimed at

increasing the efficiency and equity in resolving disputes by improving access

to justice which is not rationed and promoting private sector development.

The public as well as most judges and lawyers also consider the time

required for resolution of a typical case as excessive. It is not uncommon for

cases to take up 12 years to be resolved in court. As a result, the courts are

experiencing tremendous backlogs. In Brazil, more than 4 million cases were

filed in the courts of first instance in 1990, but only 58 percent of those cases

were adjudicated by the end of 1990. In Bolivia, in several first instance

courts, only 42 percent of the cases that enter the system are disposed of in the

same year. In Trinidad and Tobago, only about 30 per cent of the cases filed

are resolved in the same year. The increasing backlogs and time delays

throughout the region have shown an increase in demand for court services.

With the increase in economic activity, the courts have also

experienced an increase in case filings, but they have not been able to keep up

with the pace of filings thereby causing backlogs. In addition, the courts have

been poorly managed. The courts have historically been managed by the

judges themselves who have spent up to 70% of their time on court

administrative matters. Even worse, judges have little training prior to

assuming responsibilities on the bench or while on the job. Regardless of

wealth, there is a desire to avoid the judicial system's delays and

unpredictability. As a result, there is widespread recognition that judicial

reform is necessary. In fact, many countries in Latin America and the

Caribbean have embarked on reforming their judicial systems and have

increasingly requested assistance from the World Bank in this area. However,

the elements of judicial reform and some preliminary priorities need to be

formulated.

The most important elements include the independence of the

judiciary-- the appointment, evaluation, and disciplinary systems; judicial

administration-- court administration, case administration, and procedural

codes; access to justice-- alternative dispute resolution mechanisms, court

costs, legal aid, small claims courts, and gender issues; legal education --for

students and the public and training for lawyers and judges; and the bar

associations. Although these are the basic elements, the individuality and

uniqueness of each judicial system does not permit complete specificity in the

recommendations provided within this paper. Such specificity can only come

as a result of an in-depth review of each country's judicial sector. The

sequencing of the reforms also requires country-specific review, however,

some initial priority areas could include: administration of the courts,

independence of the judiciary, training for judges, court personnel and lawyers

and improving the access to justice. Some preliminary activities in these areas

are provided under each recommendation section.

Independence of the judiciary has structural, organizational and

administrative aspects which must be considered during reform. This is

essential in order to change the public's perception of corrupt behavior in the

judiciary. Several aspects that should be considered include substantive,

personal, collective and internal independence. Such independence allows the

judiciary to make decisions according to the law and not based on external or

internal political factors. Personal independence for judges can be achieved

through appropriate judicial terms, salaries and case and court assignments.

In addition, the method in which judges are appointed, evaluated and

promoted play an important role in independence as well as maintaining

qualified judges on the bench. An important part of the quality will depend on

the disciplinary and evaluation systems in place. Judicial independence

requires a transparent and merit-based appointment system. Such a system

could involve a judicial council which participates in the process.

All these elements constitute the overall independence of the judiciary

and must be considered during judicial reform. Specific administrative and

organizational reform measures for enhancing judicial independence

regardless of the type of independence should include: judicial budget

autonomy, the existence of a uniform appointment system, stable terms,

disciplinary system for court personnel, and adequate salaries and retirement

benefits for judges. Transparent methods of appointment, removal and

supervision should be included in judicial reform programs in order to ensure

personal and functional independence for judges. Independence may also be

strengthened by building the administrative capacity and training of judges

and court personnel. In this way, the judiciary becomes efficient and obtains

more respect, thus improving the quality of personnel attracted to a judicial

career.

The administrative aspects of independence include court and case

administration. Court administration involves the administrative functions of

the courts, including administrative offices, personnel, budget, information

systems, statistics, planning and court facilities. Historically, the court budget

has not been able to meet the needs of the judiciary. Judges and court

personnel work under conditions that are not conducive for efficient

administration of justice. The inadequate court facilities and lack of

technology compound this situation. Due to a lack of space for archives and

active case storage, cases are often found lined up along the hallways of the

courts. Case administration, on the other hand, refers to the processing of

cases, including, for example, case management. This can have a tremendous

impact on the efficiency of the courts. Most courts experience severe case

backlogs and are unable to reduce their caseloads to cope with delay. For

example, in 1993, there were approximately 500,000 cases pending in the

entire court system in Ecuador. The Argentine statistics office estimates that

over 1,000,000 cases were pending in the entire Federal system in 1992. By

1993 in Colombia, over 4 million cases were pending. One way to address

such backlogs is to review the procedural codes to determine whether they are

creating any backlogs in the system.

In order to address the administration element of reform, the program

should review the budgetary process and ensure that there be budget

autonomy. In addition, activities should also include assistance in

decentralizing the administration of budgets. Additionally, a permanent

administrative full-time position should be created as part of the judicial

structure. A review of the current number of personnel should be completed to

determine the actual needs given the court and case management techniques as

well as establish clear terms of appointment, classification of positions and a

system of promotions based on evaluations. Finally the court facilities should

be modernized to accommodate such reforms.

Access to justice depends on the proper functioning of the judicial

system as a whole, but some specific factors include the economic,

psychological, informational and physical barriers for individuals to access

judicial services. This includes, for example, court costs and facilities as well

as language differences which may be found among indigenous populations,

for example. Proper legal aid programs and alternative forms of justice can

also assist in improving access. Adequate and efficient legal aid and public

defenders programs should be made available to provide legal assistance and

advice for those who can not otherwise afford to bring an action or defend

themselves in a law suit. Access to justice can be enhanced through alternative

dispute resolution mechanisms (ADR). Alternative dispute resolution

mechanisms including arbitration, mediation, conciliation, and justices of the

peace can be used to alleviate delays and corruption. Another important

element of access are gender issues which should be considered under each

element of reform. Gender differences create obstacles for women, preventing

them from accessing the legal and judicial system to enforce their rights.

In order to improve access to justice judicial reform programs should

consider both court-annexed ADR as well as private ADR. This will permit

competition in resolving disputes thereby addressing the monopoly of the

judiciary. Pilot programs can be developed in a wide variety of areas

including court-annexed ADR, private ADR or jueces de paz. Such programs

should also concentrate on providing qualified legal representation for the

poor. In addition, information should be provided to facilitate public use of the

judiciary. This could include providing translators for those who do not speak

the official language and assistance for those who do not read or write.

Improved access will also depend on court costs as well as lawyers fees that are

charged. Judicial reform programs should review court costs to determine

whether they are high enough to deter frivolous claims and corruptive

behavior and whether they provide for waivers to improve access. Lawyers

fees awarded by the court should also be reviewed in this way. Gender issues

in judicial reform programs are an important part of alleviating poverty and

achieving economic growth. Women constitute a majority of the individuals

using legal aid services; and therefore, by necessity the programs should focus

on areas that affect women most. In addition, judges must be made aware that

specific gender issues are often involved in the cases before them.

Legal education and training is fundamental for judicial reform. This

includes legal education and training for students, continuing legal education

for practicing lawyers, judicial training for judges and legal awareness

education for the public. The quality of law schools has been deteriorating and

therefore there is a need to improve both the university level education as well

as promote continuing training for professionals. In most Latin American

countries the public universities have no entrance requirements, and each

school establishes its own graduation requirements. Due to low salaries, law

professors usually work on a part-time basis, and therefore, have little time to

devote to research. As a result, judges often are not prepared for the bench.

Legal education at the university level is important for the future of

the legal profession, but it is an ambitious area that has had limited success in

the past. An evaluation of the open access of law schools should be done in

order to prevent an excess supply of lawyers and therefore, a misallocation of

resources. Judicial reform programs should concentrate on the training of

judges, and most importantly, on training for current judges as the current

reforms will only be successful if the sitting judges are convinced of the need

for judicial reform. Finally, public education should be included in the reform

program. This could also include public campaigns as a way to provide better

education and access to the population at large.

The main role of the bar associations in all countries is to regulate the

profession through entrance requirements and the disciplinary system, to

provide legal training for its members, and provide basic legal services to the

community. The requirements for qualifying as a practicing attorney, ethical

standards and the disciplinary procedures must be clearly established and

enforced. Generally in Latin America, the requirements to practice law entail

merely holding a law degree from a university and being a member of the bar;

this is the case in Argentina, Peru and Ecuador. Bar associations are

responsible for enforcing the disciplinary system; however, the mechanisms in

place usually do not operate properly.

The bar associations should take a more active role in monitoring the

legal profession as well as the judiciary and establishing clear ethical

standards. These standards should be enforced by an effective disciplinary

system which can impose appropriate penalties. The bar association should

also assist in improving access to justice by providing some basic legal services

to their community. In addition, the bar association should provide training

for its members. Such training should include substantive legal courses as well

as courses in case management techniques.

These are some of the most important elements of reform and ideally

a reform program should attempt to cover as many of the elements lacking in a

specific country as possible. However, resource constraints as well as other

donor participation should be taken into account when establishing priorities.

Although some general recommendations are made within each chapter of the

paper, specific recommendations can only be made once a judicial sector

review is completed for that country. Furthermore, priorities for

implementation can only be provided on a specific country basis. Judicial

reform programs should be implemented in stages: the sequencing of such

stages should be planned taking into account the costs and benefits of each

stage. The initial stages, however, should avoid legislative reform because of

its extremely costly nature in terms of political capital. Each country's legal,

economic, social and political environment must be factored into the

recommendations as well as into developing priorities for implementation.

The Bank can assist in this process by financing judicial sector studies. With

this, constructive dialogue can take place with the governments as well as a

design of appropriate avenues of reform.

There have been several initiatives in the Latin America and

Caribbean Region which provide a basis for this approach to judicial reform.

The Bank first began with a small judicial technology component in a larger

Argentine Social Sector Reform Loan in 1989 and then a separate Judicial

Infrastructure Loan in Venezuela in 1994 which concentrated on

infrastructure, technology and some substantive studies in other areas to

compensate for the lack of a prior sector review. During implementation,

however, the project has been substantially revised. At the same time, the

Bank began to develop a second generation approach to judicial reform. In

1992, the Bank embarked on a judicial sector review in Argentina financed by

an Institutional Development Fund Grant. In 1995, a judicial reform project

was approved for Bolivia where several studies had been completed which

influenced the components that were included. The Bank has adopted a prior

review approach and now produces its own judicial sector reports. Such

reports have been completed in Ecuador and Peru where projects are under

preparation. These projects have aimed to include a broader range of

components than was included in the first project in Venezuela, as well as an

effort to include a broad participation by the legal community in the

preparation of the individual components.

Judicial reform should be conducted through a consensus approach

and should be initiated from within the country. Only if these two objectives

are met -- judicial reform from within and consensus -- will the reforms be

long-term systemic changes instead of superficial reforms subject to reversal.

Consensus requires that the political limitations and the priority pragmatic

strategies be taken into account. Any program of judicial reform must also

consider the vested interests in the judiciary, the bar associations, and the

other branches of government. These vested interests can impede consensus.

Projects should encourage the participation of a broadly composed informal

committee or judicial council (consejo) during the preparation and

implementation stage in order to promote consensus in the projects, provide an

obvious counterpart as well as ensure accountability. Though it is ideal to

have full consensus, it may not be realistic. Therefore, at some point it is

important to begin some form of reform activity while at the same time

continuing the consensus building.

The Latin America and Caribbean Region today is politically,

economically and socially better suited for judicial reforms than the 1960s and

1970s. There is greater economic stability in the region which has allowed

these countries to begin the so-called second generation reforms. The

economic reforms have also increased transactions with unknown actors and

thus has increased the demand for formal mechanisms to resolve conflicts.

Second, the reforms are a result of the local initiative and strong commitment:

there is wide support among governments including across political parties,

legal community, private sector as well as among NGO's for such reforms.

Finally, the programs include a wide variety of elements which are specifically

designed for country needs.

The objective of these projects today is to provide a service that is

efficient and equitable as well as respected and valued by the community. In a

market economy, an effective judicial system is expected and needed by

citizens, the government and the private sector in order to resolve conflicts and

order social relationships. As markets become more open and transactions

more complex, formal and impartial judicial institutions will be essential.

Without such institutions, private sector development as well as public sector

modernization will not be complete. Similarly, such institutions contribute to

the economic efficiency and lead to growth which in turn alleviates poverty.

Judicial reform should especially be considered in tandem when contemplating

any legal reform because without a functioning judiciary, laws cannot

effectively be enforced. As a result, comprehensive judicial reform can have a

tremendous impact on the success of the modernization of the state as well as

make an important contribution to the overall development process.

I. INTRODUCTION

During the 1980s, development efforts focused on a macro-economic

agenda that out of necessity took priority over institutional reforms. "[F]or

decades, governments in Latin America failed to develop the institutions

needed to handle their populations' basic problems because they concentrated

most of their resources on managing their countries' economic assets and

regulating almost every aspect of economic life."i However, as economic

stability became a part of reality, many countries began to work on achieving

social equity as well as political and economic reforms. As a result, the

development process has now evolved into second generation reforms with an

expanded scope that focuses on institutional reforms, such as judicial reform.

In the words of one Minister of Justice, "it is not enough to build highways and

factories to modernize a state . . . a reliable justice system is needed as well."ii

An effective government requires functioning legal and judicial institutions to

accomplish the interrelated goals of promoting private sector development,

encouraging development of all other societal institutions, alleviating poverty

and consolidating democracy. Legal principles supporting the prevailing

economic system in Latin America are nominally based on the freedom to

exercise individual and property rights.iii But legislation is meaningless

without an effective judicial system to enforce it.

The purpose of the judiciary of any society is to order social

relationships (among private and public entities and individuals)iv and resolve

conflicts among these societal actors. The Latin America judicial sector does

not effectively accomplish these purposes but is, in fact, currently perceived by

all of its users -- private individuals and the business community -- and its

actors -- judges and lawyers -- to be in a state of crisis.v As a result, the public

and the business community distrusts the judiciary and believes judicial

resolution to be excessively time-consuming. This perception of

ineffectiveness by the institution's potential users prevents its intended

beneficiaries from accessing its services, and when forced to use its services,

believe they will be unjustly treated. Consequently, the judiciary cannot fulfill

its purposes of ordering society and resolving societal conflicts and is therefore

in need of reform. This paper will discuss what judicial reform is, the reasons

why it is necessary for economic and social development in Latin America,

and specific recommendations with the benefit of the information provided by

the region's experiences.vi Although the Caribbean is included in this paper,

not all the problems and recommendations will be relevant for those countries

based on a common law system since these countries have a specific set of

concerns. After discussing the specific elements of Latin American and

Caribbean judicial reform efforts, the final section of this paper will provide a

more extensive discussion of project design. It is important to mention that

although this paper concentrates on the civil aspects of judicial reform, many

of the elements apply to both civil and criminal courts. However, the Bank is

prevented by its Articles of Agreement to work within the criminal law area

since intervention in this area is not considered to be for productive purposes,

i.e. they do not seek to promote economic development.vii

II. THE GOALS OF JUDICIAL REFORM

Economic reform requires a well-functioning judiciary which can

interpret and apply the laws and regulations in a predictable and efficient

manner. With the emergence of an open market, there is an increased need

for a judicial system. The transition from family run businesses --which did

not rely on laws and formal mechanisms to resolve conflicts-- to an increase in

transactions with unknown actors has created a need for formal conflict

resolution. These new business relationships need impartial decision-making

within more formal institutions. However, the current judicial system is

unable to satisfy this demand, thereby forcing the parties to continue relying

on informal mechanisms and long-standing family or personal ties to do

business.viii This sometimes discourages business transactions with unknown

but possibly more efficient actors which leads to an inefficient allocation of

resources. ix This situation adds cost and risk to business transactions and,

thus, reduces the size of the markets, and consequently, the competitiveness of

the market.x

In addition, the increase in economic integration between countries

and regions demands a judiciary that meets international standards. For

example, the WTO, MERCOSUR, and NAFTA require certain principles to

govern trade issues. Economic integration requires greater harmonization of

laws which in turn requires that they be consistently applied by the member

countries. The Member Countries must have assurance that the laws will be

applied and interpreted in accordance with these international or regional

standards. In this way, the countries around the world must modernize their

judiciaries in order to accommodate these demands and provide a level playing

field in the international arena.

The government must be able to enforce rules of the game it has

created; through the judiciary, it can provide this service by enforcing

individual and property rights.xi Consistent enforcement in turn provides for

a stable institutional environment where the long term consequences of

economic decisions can be assessed. In this context, an ideal judiciary applies

and interprets the laws equitably and efficiently which means that there must

be: (a) predictability in the outcomes of cases; (b) accessibility to the courts by

the population regardless of income level; (c) reasonable times to disposition;

and (d) adequate court-provided remedies.xii

Contrary to this ideal, the judicial sector in Latin America neither

effectively nor efficiently enforces existing legislation. Currently the system is

plagued with distrust and delays in disposing of cases which have impeded

private sector development and access to the courts. First, the public has a

widespread distrust of the judicial sector. For example, in Argentina only 13

percent of the public have confidence in the administration of justice.xiii In

Brazil, 74 percent of the public view the administration of justice as fair or

poor.xiv The worst case perhaps exists in Peru, where 92 percent of the

population lack confidence in the judges.xv Court officers, including

judgesxvi and support personnel as well as lawyers and government officials

are perceived to be at the root of the problem and thereby make it difficult to

even promote any change. The judiciary, in economic terms, has a monopoly

on the supply of justice, and consequently, has incentives to act

inefficiently.xvii The judiciary captures the rents in kind by providing less

than optimal service which in turn causes delay in the resolution of cases.

The public as well as most judges and lawyers also consider the time

required for resolution of a typical case as excessive-- this is the consequential

damages individuals and businesses suffer due to the prolonged time for

resolution and the courts incapacity to satisfy the population's demand for

court services.xviii It is not uncommon for cases to take up 12 years to be

resolved in court.xix As a result, the courts are experiencing tremendous

backlogs. In Brazil, more than 4 million cases were filed in the courts of first

instance in 1990, but only 58 percent of those cases were adjudicated by the

end of 1990.xx In Bolivia, in several first instance courts, only 42 percent of

the cases that enter the system are disposed of in the same year.xxi In Trinidad

and Tobago, only about 30 per cent of the cases filed are resolved in the same

year.xxii The increasing backlogs and time delays throughout the region has

shown an increase in demand for court services.xxiii The judiciaries in Chile

and Ecuador, typical cases, do not increase the supply of services in response

to increased demands for services.xxiv

Given the current state of crisis of Latin American judicial systems,

the benefits and goals of the reform efforts can be broadly grouped into two

overall structural goals: enhancement and reinforcement of democracy and

promotion of economic development. Judicial reform is necessary for a

functioning democracy and is part of the process of redefining the state and its

relationship with society, and economic development cannot continue without

effective enforcement, definition and interpretation of property rights. More

specifically, judicial reform is aimed at increasing the efficiency and equity in

resolving disputes by improving access to justice which is not rationedxxv and

promoting private sector development.

III. JUDICIAL REFORMS IN LATIN AMERICA AND THE CARIBBEAN

In order to achieve these goals, a program for judicial reform should

be designed to specifically address the main factors affecting the quality of

court servicesxxvi, its monopolistic nature and the resultant inefficiency. This

reform effort must also address the political, economic and legal causes at the

root of an inefficient and inequitable judiciary.xxvii If such a holistic

approach is not adopted, there will be a minimal probability for success.

While an exhaustive list of reform measures cannot be provided, this paper

discusses the main elements necessary to assure an equitable and efficient

judiciary.xxviii The basic elements of judicial reform should include measures

with respect to guaranteeing judicial independence through changes to judicial

budgeting, judicial appointment, and disciplinary systems; improving court

administration through the adoption of case management and court

management reforms; adopting procedural reforms; providing alternative

dispute resolution mechanisms; enhancing the public's access to justice;

incorporating gender issues in the reform process; and redefining and/or

expanding legal education and training programs for students, lawyers and

judges. Although these are the basic elements, the individuality and

uniqueness of each judicial system does not permit complete specificity in the

recommendations provided below. Such specificity can only come as a result

of an in-depth review of each country's judicial sector.

JUDICIAL INDEPENDENCE

Administering justice at all levels depends on the quality of judges;

therefore, judicial independence is an imperative feature of any judicial reform

project. Contrary to common opinion, judicial independence signifies much

more than a judge's freedom from political influence. Independence has a

number of definitions and dimensions,xxix including structural,

organizational and administrative aspects of a judicial system, which all play a

role in judicial independence.xxx However, given that a number of the

structural aspects of independence are constitutional in nature, the focus in

this section will be on the administrative and organizational aspects of

independence.xxxi

There are several different types of independence: substantive

independence, which is functional or decisional independence in German and

American law respectively (making judicial decisions and exercising official

duties subject to no other authority but the law), personal independence

(adequately secured judicial terms of office and tenure), collective

independence (judicial participation in the central administration of courts)

and internal independence (independence from judicial superiors and

colleagues).xxxii

The first type of judicial independence is functional or decisional

independence or the ability to make decisions according to the law and not

according to external political factors.xxxiii A number of external factors can

affect a judge's decision including pressure from the political branches of the

government, other members of the judiciary, and public or personal

relationships with respect to the parties or the subject matter of the particular

case. The branches of government, and in particular the executive, has

historically influenced judicial decision-making. The judiciaries in Latin

American countries have historically not acted as significant institutional

counterforces to legislative and executive abuses of power for a number of

historical, political and structural reasons.xxxiv

Interference in the decision-making process can also occur within the

court system itself. This is part of what has been termed internal

independence. In most Latin American countries, geographic and subject

matter jurisdictions are not well-defined. This allows for undue political

interference by the supreme court, as well as by the legislature, in the lower

courts' judicial activities. For example, one observes that, with few exceptions,

indiscriminate federal judicial review of state court decisions is common in the

region. In this context, state cases lacking federal constitutional issues at stake

are ultimately appealable to the federal courts, who are empowered to reverse

state court decisions on purely state law grounds.xxxv Moreover, when

specific jurisdictional limits do exist, courts must respect such jurisdictional

requirements.xxxvi

It is also important that the individual judges have personal

independence. Personal independence refers to the fact that judges have

secure judicial terms and salaries, and the judiciary controls case assignments,

court scheduling and judicial transfers to a different court.xxxvii Forced-

reassignments can be particularly inimical to judge's personal

independence.xxxviii Personal independence for judges can be achieved

through appropriate methods of appointment, removal and supervision.xxxix

In addition to reinforcing personal judicial independence, these measures also

assist in assuring judicial accountability. Judges are public service providers

and should not only be independent and impartial but also accountable to the

population they serve.xl

Although many Latin American and Caribbean judiciaries lack

independence, it has been argued that this lack of independence may be

necessary for economic development. Currently, there is a tension between

democracy and economic reform and between economic reform and social

policy exists.xli For example, during recent reforms in Latin America some

countries have benefited from a strong executive that can act in an efficient

manner. The dilemma is then how to, at the same time, provide for the

institutional checks that guarantee accountability and oversight.xlii This

experience occurs most often when the executive has the power to issue

decrees while underdeveloped or delegitimized judicial systems are not able to

prevent executive abuse of power through effective judicial control or

legislative oversight.xliii In several cases of stalemate between the legislative

and executive, the executive has been able to bypass confrontations through

decrees in order to achieve economic policy with little to nonexistent scrutiny

from the judiciary. The Argentine and Peruvian experiences demonstrate such

behavior. However, judicial review could be a key component of economic

reforms. Moreover, without this oversight and consultation, economic reforms

may be unstable and subject to reversal.xliv

Judicial Appointment and Evaluation Systems

In order for any judicial system to provide justice, its service

providers, the judiciary, must be highly qualified, competent and respected

individuals in society. Therefore, adequate institutional mechanisms must

exist for selecting and maintaining such individuals in the judicial structure.

Such institutional mechanisms include appointment processes, terms of

appointment, salary levels and evaluation systems. All of these elements must

be properly fitted in order to provide the appropriate incentives for judicial

actors to provide quality service. In other words, the appointment process

must be tailored to find the highest quality of individuals, terms of

appointment must not offer improper incentives to act in personal interests,

salaries must be sufficient to attract and maintain high quality professionals

and, finally, an evaluation system must be in place in order to allow the

profession and the public to monitor judicial activity. Finally, a factor that is

often forgotten is that of transparency. For a market to function, in this case

the market for judicial services, there must be sufficient information available

to potential users of its services.

Judicial independence requires a transparent and merit-based judicial

appointment system. A variety of different appointment systems exist.xlv

Some countries have chosen to establish special committees that review

credentials and nominate qualified lawyers. Such committees may take the

form of a judicial councilxlvi with representatives from all levels of the

judicial branch, members of the legislature, representatives of the executive,

bar association members and sometimes even private lawyers or the public.

This may bring a perception of objectivity to the process if specific standards

are followed. Such a council is used for nominating Supreme Court justices in

El Salvador. In Chile, the president makes a selection from a list of names

provided by the supreme court.xlvii Other countries use committees, managed

by the executive, to recommend individuals.xlviii Although appointments are

often made by the executive, in some systems, the courts review and suggest

candidates for the positions.xlix Judicial schools can also be the main source

of judicial appointments, as is the case in Uruguay. It has been argued,

however, that there should be a mix of career judges as well as those from

outside the judicial system.l Finally, it should also be noted that the

appointment process is different for lower court judges who are often

appointed by the supreme court.li In any appointment system, however, the

most important aspect of such a system is that it be respected.lii

A system based on the highest professional standards and personal

integrity will promote quality personnel and quality justice. Judicial

appointments that are based on standards to ensure political loyalty only

perpetuate the dependence of the judiciary. It is essential, therefore, that only

those individuals truly qualified be considered for judicial positions.

Standards set forth in the appointment process may be applied through a

number of different standards systems, many times depending on the

respective appointment system: exams, a judicial career, and/or special

training. Most countries, including Argentina, Chile and Ecuador, do not

require a judge first to pass an exam or a course in order to be appointed to the

bench.liii In Brazil, however, entrance to the judiciary is by public exam,liv in

Peru and Venezuela new judges are appointed by a concurso publico. lv

In addition to the judicial appointment system, the judicial term also

plays an important role in ensuring the independence of the judiciary. Judicial

terms should be set to allow for as much independence as possible.lvi

Although it may not be advantageous to have life terms for all judges, life

terms can provide judges, in some instances, an environment that permits

them to be free from outside pressures and political influences. The Province

of Tucuman in Argentina recently instituted life terms for all judges to

improve independence of the judiciary. Fixed terms may cause some judges to

act inappropriately or unethically in order to ensure work opportunities after

their judicial service. For example, Supreme Court justices in Ecuador are

appointed for six years with the possibility of re-appointment. Such a system

creates an environment where judges may not recuse themselves from their

former private cases because they may have a vested interest in maintaining

control over the case, if they find themselves in the private sector again. The

same problem exists if judges are not provided with secure and stable

pensions. However, even when Latin American judges have life-time tenure,

history has shown that life terms do not always guarantee judicial positions as

the Executive has violated such terms.lvii Although there may be life terms in

certain countries, a trial period may be an option for a country to consider.

Germany is an example of a country that uses probationary periods.lviii

However, the incentives for good behavior may be in effect only during the

probationary period.lix The judicial term and the appointment systems must

be considered jointly in order to provide the necessary balance of incentives for

encouraging appropriate judicial behavior.

In order to avoid problems associated with an aging population of

judges, many countries have implemented mandatory retirement ages.lx

However, arguments have been made that given some of the low retirement

ages, the judicial system may actually lose many judges who still may be able

to continue their responsibilities.lxi Another option is to allow judges, at a

certain age, to take voluntary retirement or enter a mandatory senior status

that would entail a lighter case load.lxii This allows the judges themselves to

evaluate whether they are capable of continuing their responsibilities.lxiii

Similarly, an independent judiciary requires competitive salary

determinations.lxiv On average, salaries remain low as compared to other

private sector and sometimes to other public sector jobs.lxv For example, in

Ecuador, judges' salaries were increased 100 percent in 1992. However, such

compensation is still considered low in comparison with lawyers' salaries in

non-profit agencies.lxvi Judicial salaries must be comparable to the salary

levels of legislators and other professionals.lxvii Some countries base judicial

salaries on those of other civil servants, as in Uruguay and Paraguay, while

other countries ambiguously require an "adequate salary" or "one appropriate

for their position".lxviii In Bolivia judicial salaries are comparable to public

sector salaries and in some cases are even higher. (see figures 1 and 2)

FIGURE 1.

lxix

FIGURE 2

Once judges are appointed, a system of periodic evaluation is

necessary for maintaining the high standards set by a council or other

standard-setting mechanism. For example, Chile and El Salvador have

established a yearly evaluation system managed by the Supreme Court.lxx

These programs are considered to have improved the public's image of the

judiciary.lxxi Germany and France also use performance evaluations to make

promotion decisions.lxxii Other countries, like the United States, do not link

performance evaluations with promotions or salary increases.lxxiii

Consideration should be given to assuring that promotion systems do not

encroach judicial independence.lxxiv If the evaluation process is linked to

promotion and salary increases, the evaluation should not be based solely on

the number of cases adjudicated by a judge as this may encourage rapid but

unjust decision-making. Bolivia is currently experimenting with using

compliance with time benchmarks as one criterion in performance

evaluation.lxxv Since judges should be free from even the "slightest

interference by third parties when applying the law", who implements

performance standards becomes an important question. Thus, it may be unwise

to have the Ministry of Justice evaluate judges; instead, the judiciary should be

evaluated by peers.

One final element should be incorporated into any appointment or

evaluation process that a country may chose to implement: transparency.

Currently, the Latin American public perceives the appointment process as a

secretive process without any participation or knowledge from the

outside.lxxvi The public should be privy, in some way, to the nomination

process and the evaluation processes.lxxvii Providing mechanisms for

transparency and participation will allow the public to gain confidence in the

appointment process, the quality of judges themselves and in turn the judicial

system.

Disciplinary System

An effective disciplinary system is essential for maintaining high

standards of justice. Presently, many disciplinary systems, where they exist,

are not effective and, in some cases, are simply ignored. This creates an

environment where the public and lawyers cannot or will not bring ethical

charges against a judge.

A number of different structures exist for disciplinary systems. For

example, the judicial council may have jurisdiction over judicial discipline, in

addition to the appointment and the evaluation processes, thus creating a

uniform system and a central office.lxxviii Moreover, the review should be

conducted by people who do not have prior relationships with the judges in

question.lxxix Judicial councils can receive allegations of misconduct and

provide initial investigations.lxxx It is not necessary that the judicial council

conduct investigations, but there should be some type of commission that

investigates the allegations of misconduct.lxxxi In other cases, it may be the

Ministry of Justice that has responsibility for the disciplinary system.lxxxii In

a number of countries, the disciplinary system is administered and monitored

totally within the judicial structure.lxxxiii In any system, judges as well as

lawyers and the public should have the right to bring a complaint against a

judge. It is also important that the judiciary be involved in the disciplinary

process -- always assuring, however, that decisions are made objectively.lxxxiv

Regardless of the disciplinary structure selected, a number of consistent

problems exist in disciplinary systems, including the absence of clear

standards of ethical behavior, inappropriate enforcement mechanisms and the

lack of transparency in the disciplinary process.

The lack of clear ethical standards that define the expected behavior

of the judges or provide clear guidelines by which to assess their conduct

generate incentives for corruption. The absence of clear standards also

inhibits the development of an enforcement mechanism capable of addressing

charges of corruption within the courts. The disciplinary punishment should

also be realistic and appropriate for the violation because although suspension

and removal may be available, they are seldom, if ever, applied.lxxxv Again,

it is important that such punishments do not infringe on judicial

independence.lxxxvi The preliminary removal proceedings should be

conducted by the court or a board that includes a majority of judges selected by

the judiciary. Some argue that removal should only be done by the

judiciary.lxxxvii In this sense, the judiciary is self-regulating because the

investigation, reporting and decision to remove all occur within the judicial

branch without interference from the political branches of the

government.lxxxviii

Recommendations

All these elements constitute the overall independence of the judiciary

and must be considered during judicial reform. Judicial reform should seek to

address each type of independence. Specific administrative and organizational

reform measures for enhancing judicial independence regardless of the type of

independence should include: judicial budget autonomy, the existence of a

uniform appointment system, stable terms, disciplinary system for court

personnel, and adequate salaries and retirement benefits for judges.

Transparent methods of appointment, removal and supervision should be

included in judicial reform programs in order to ensure personal and

functional independence for judges. Independence may also be strengthened

by building the administrative capacity and training of judges and court

personnel. In this way, the judiciary becomes efficient and obtains more

respect, thus improving the quality of personnel attracted to a judicial career.

It may be difficult within the confines of a judicial reform project to

address the independence issues directly because they usually require

constitutional or legislative changes. Additionally, in many cases, it is not the

laws themselves that create a lack of independence but the actions of the

judiciary. Ultimately, it is up to the judiciary to act independently.lxxxix

This lack of independence and the high level of politicization is usually found

at even the upper echelons of the judiciary, thus, presenting an argument for

starting reform efforts with the courts of first instance and working from the

ground up. Nevertheless, independence at the highest levels should be

addressed simultaneously. Judicial reform programs based on enhancing the

independence of the courts may be politically unfeasible among some members

of the legislatures, executive and even the judiciary given the various vested

interests, however they are essential if real reform is to occur.

Ideally, appointment process should be reviewed for all levels of the

judiciary since one of the main goals of the reform is to assure that

professionals administer justice. In many cases this would mean changes in

the appointment process would require constitutional or major legislative

reforms. It is important that judicial reform programs include both the upper

and lower echelons of the court system simultaneously. This is because even

though any country's supreme court selection process will inevitably be one

where political processes dominate, in many cases it is the responsibility of the

higher courts to appoint the lower court judges. In order to diminish the

system of patronage, the reforms will necessarily begin with the higher courts

as has been recently accomplished in Mexico.

As part of their appointment and evaluations systems, a number of

Latin American countries have established judicial councils. Generally, such

judicial councils' responsibilities include: court administration, human

resources and judicial and personnel misconduct. They may have jurisdiction

over lower courts as well as the supreme court. In the Province of Tucuman in

Argentina, the creation of the Consejo for the appointment process has ensured

that more qualified lawyers are being appointed to the bench at all levels. It is

important that the members of a council be independent and not be run by the

party in power. Argentina, Ecuador and Peru have recently created judicial

councils.xc These councils should include membership from the judiciary, the

bar, the citizens, and the executive when established, similar to the one

proposed in Chilexci, and should be chaired by a judge, as is done in

Bolivia.xcii Finally, in forming a Consejo, it is important to consider whether

its members will occupy part-time or full-time positions.xciii

Judicial appointment, terms and evaluation all play an important part

in developing an appropriate incentive scheme for all of the judicial systems'

actors, including judges, lawyers and court personnel. This could include

requiring exams on technical laws for judicial appointment which may provide

the appropriate incentives for judges to delegate more of the administrative

responsibilities and publishing case statistics for each court which can provide

incentives for judges to operate more efficiently.xciv Salaries should also be

carefully evaluated under the projects in order to provide appropriate

incentives for judges as well as court personnel.xcv Reform programs should

focus on providing the appropriate set of incentives for changing these actors'

behavior to provide efficient and quality justice -- especially important in such

an incentives scheme is the disciplinary system.

If internal judicial disciplinary mechanisms do not operate properly,

political interference will force the extra-institutional (and sometimes extra-

constitutional) removal of judges, as occurred in Mexico in 1994. Such

political interference because of the absence of functioning disciplinary

mechanisms undermines the judicial institutions, the public's confidence in the

same and the independence of the judges. Judicial reform programs should

address whether the current disciplinary mechanisms are appropriate and if

so whether they are being implemented. Consideration should be given to

establishing review committees which can receive and review complaints and

interact with the public as well as the legal community. Although the final

disciplinary decision may be made outside the judiciary, consideration should

be given to having the initial disciplinary review conducted by an

interdisciplinary committee which includes judges. In addition, it is essential

to review the ethical guidelines and provide training for judges with respect to

such standards.

Finally, in order to educate judges concerning what behavior is not

acceptable and inform the public of the disciplinary process, a compilation of

the year's complaints should be available to the judges as well as the public.

Publishing opinions is important as it provides clear indications and

definitions of unacceptable and punishable behavior.xcvi Such publication

also assures the public that complaints are dealt with in a serious manner, thus

providing a needed measure of accountability. Some have argued that

additional measures for providing transparency and accountability should

include opportunities for the public and the bar associations to send comments

concerning judicial behavior.xcvii

JUDICIAL ADMINISTRATION

Judges in many Latin American countries are faced with severe

backlogs, low salaries, poorly trained staff, and a lack of technology -- all of

which create barriers preventing judges from performing their jobs in an

efficient manner. As a result, the administration of justice needs to be

reviewed as one of the most important areas for reform. Administration of

justice encompasses two areas: the administration of the courts and the

administration of cases, both of which must be addressed in order to improve

the administration of justice. Court administration involves the administrative

functions of the courts, including administrative offices, personnel, budget,

information systems, statistics, planning, and maintenance of the courts. Case

administration, on the other hand, refers to the processing of cases, including,

for example, case management.

Court Administration

In many Latin American countries, the judges themselves are often in

charge of court administration. This added responsibility prevents judges from

spending much needed time on judicial decision-making. In fact, judges in

Ecuador spend up to 70 percent or more of their time on administrative

matters, leaving little time for judicial responsibilities.xcviii The same

administrative duties occupy 65 and 69 percent of available judicial time in

Brazil and Peru respectively.xcix Moreover, it is quite common for judges to

delegate many of their judicial responsibilities to their clerks and keep the

administrative responsibilities for themselves. Three aspects of court

administration merit particular attention: first, the centralization of

administrative responsibilities and the consequent need to delegate

administrative responsibilities; second, the administration of court personnel;

and third, the judicial budget.

The overall court administration is often centralized. In some cases,

the higher courts prefer to handle the general administration of the system, but

this can create inefficiency if lower courts are forced to make even the most

simple requests to a centralized office.c It is advisable to work towards an

administrative system that is connected to the different levels of judicial

activity in order to be able to provide a court system that services geographic

and subject-specific needs.

As caseloads continue to rise, judges may be forced to delegate more

responsibilities as more pressure mounts on the court to perform its judicial

functions. Some courts have experimented with establishing separate

administrative positions and staffing them with persons specifically trained in

management, and thus, allowing such personnel to make the day-to-day

administrative decisions. This should leave judges free to make policies for

the court and oversee the overall administration of the court while leaving the

day-to-day administrative matters to the professional managers. Establishing

these new administrative positions has proven successful. Consequently,

judges are beginning to realize that this can be a tremendous assistance in the

administration of justice. However, such positions should be made official so

that they transcend changes in power. For example, in Ecuador, only after a

long process of adjustment and initial resistance, a professional managerial

approach was accepted, but it was repealed by subsequent changes of a new

Supreme Court president. As a result, the current supreme court president

signs checks for gasoline and decides whether a court employee in the

province may take an extended leave for sickness. Peru represents a unique

case in Latin America, where the administrative position is official and has not

been affected by a change in presidents. Bolivia and Chile are also using

administrators on a pilot basis in some courts.ci

The second aspect of judicial reform with respect to court

administration is personnel administration. A review must be conducted of the

current staff and its distribution in the court system as a number of countries

have an over-staffed judicial structure. Very often courts have proposed

solutions based on adding more personnel and judges as a way to deal with the

increasing caseload. In Brazil, 81 percent of the judges indicated that the

insufficient number of court personnel is the cause of the inefficient judiciary.

However, increased court personnel alone does not necessarily make for a

more efficient environment. In many countries in Latin America, as is true in

Ecuador, the number of staff assigned to each court is fixed and set by

regulation or statute.cii Thus, the number of staff members is the same in

every First Instance court regardless of the specific caseload. Furthermore, in

cases where there is a surplus of staff members, there is no evidence that these

courts are more efficient than those operating with fewer personnel. In

addition to the official personnel, many countries, including Argentina,

Ecuador, Peru and Chile, have unofficial court clerks who are not paid by the

judiciary but work for small payments to process cases.ciii

It is important to note, however, that many judges in Latin America

have tremendous caseloads. Perhaps at some point it may be justified to

increase the number of judges due to this fact. Decisions on whether to

increase the number of positions and judicial assignments should be based on

caseload trends. civ This of course, requires courts to keep records and provide

indicators to accurately predict the future. Very often, courts have proposed

solutions based on adding more personnel and judges as a way to deal with the

increasing caseload.cv In Brazil, 81 percent of the judges indicated that the

insufficient number of court personnel is the cause of the inefficient

judiciary.cvi However, increased court personnel alone does not necessarily

make for a more efficient environment.cvii For example, in Paraguay oral

procedures were implemented for noncriminal cases, and the number of judges

was increased by one-third. The new judges were recruited from those

graduates who completed a course at the judicial training institute. These

reforms resulted in less time for disposal per case.cviii

Judicial Budgets

A budget that is independent of political forces is necessary to ensure

an independent judiciary.cix In order to accomplish this goal, however, the

judiciary must have sufficient budgetary experience and financial abilities to

forecast judicial budgetary needs. It should also be noted that although

judicial budgeting is an important aspect of judicial independence, it is in itself

an important reform measure that goes well beyond the independence issue, as

any aspect of judicial reform will depend on effective judicial budgeting.

The judiciary must have budgetary autonomy since the executive and

the legislature may act as barriers to the allocation of sufficient resources.

This may be as severe as to impede the court from providing their services

efficiently and fairly. Many countries in Latin America provide budgets to the

judiciaries which allow for only minimal standards of justice for the public.

Such budgets perpetuate judicial dependence, generate corruption among court

personnel, and prevent the judiciary from attracting well-qualified judges and

support staff. Given the inherent problems related to the lack of

independence, the judiciary should control and manage the budget it receives

from the legislature.cx Moreover, as administration and budgetary

responsibilities are intimately interrelated, true administrative efficiency

cannot occur unless the judiciary controls and implements an efficient

budgetary program.cxi

In order to have an efficient allocation of budget resources, the

judiciary must have technical, financial accounting and auditing abilities. In

most Latin American countries the judicial personnel are not sufficiently

trained in accounting and financial affairs. In some cases, the judges

themselves manage the budget. In most countries, no actual centralized

administrative court procedures exist.cxii Additionally, the lack of specialized

personnel prevents the judiciary from realistically planning its budgetary

needs. The executive cannot provide the requisite judicial budget if the

judiciary itself cannot prepare a well-reasoned detailed budget proposal for

approval by the legislative branch. In several Latin American countries--

including Brazil, Colombia and El Salvador-- the judiciary is obligated to

prepare the judicial budget.cxiii While it will always be the ultimate

responsibility of the legislature to vote on the final budget, it is essential that

the judiciary be able to define its financial needs based on forecasting expected

filings, dispositions, and pending cases.cxiv Judicial control of the budget

does not, however, necessarily signify a centralized budgetary allocation. In

most Latin America countries, the Supreme Court manages the overall judicial

budget; therefore, the centralized administration results in an asymmetric

allocation of judicial resources. In many countries, the rural courts do not

receive resources based on the population or caseloads.cxv This inequity only

enhances the inaccessibility of the judiciary to low-income rural communities.

Although many countries in Latin America have proposed allotting a

pre-specified amount of the national budget to the judiciary as a method of

increasing judicial resources, this is neither a necessary nor a sufficient

solution. First, country-specific procedural requirements and the differences

in the population's cultural propensity to demand court services makes it

unwise to state that a higher fixed proportion of the government's budget

would necessarily improve the functioning of the judicial system.cxvi Second,

a legislated percentage of judicial spending is not always respected.cxvii

However, it is always important to note that an increase in the budget is not

sufficient to reform the judiciary. The size of the budget alone does not affect

judicial efficiency (measured by backlogs and delays),cxviii though some of

the reform measures that do affect the efficiency may require an increase in

resources.

FIGURE 3.

Court Facilities

Historically, court facilities have not been a priority in the allocation

of the national budget and therefore, the judicial budgets have been prevented

from acquiring modern court facilities. In some cases, judicial budgets have

not included any funds for capital improvements. As a result, court facilities

have not been able to meet the increased demands on the judicial system and

therefore do not adequately reflect the needs of judges, court personnel and the

users. The increased need for modern technology, security and for courts that

can accommodate oral proceedings have placed great strain on the traditional

design of court facilities.cxix Court facilities have received increased attention

since they affect the overall perception and image of the administration of

justice.

Currently in many countries judges and court personnel work under

conditions that are not conducive for efficient administration of justice. Due to

a lack of space for archives and active case storage, cases are often found lined

up along the hallways of the courts. This can be a health and safety risk

especially where some have had to be closed due to dangerous conditions

caused by the weight of the paper. In addition, there are often long lines just

to enter the courthouse and some lines have been known to take up to two

hours. Many courts also do not offer security for the judges. The condition of

the courthouse has an effect both on the public as well as the court personnel

and it also affects the image of the judiciary. Courthouses must reflect the

needs of the court personnel and the users of the system.

The planning for courthouses should take into account the number of

people using the courts, the personnel, use of automation and the need for

security. Such issues should be considered under the overall judicial reform

program. In many countries there are no design standards for courthouses;

instead each building can have different configurations.cxx Some may have

no windows or electricity where others have private showers for each judge.

Investment in courthouses should be considered after there is a clear

understanding of the reforms that will be implemented. This is especially true

in countries considering instituting oral procedures which will require separate

rooms for trials. Adequate facilities are needed to implement the overall

reforms and must be considered during any reform effort.

Case Administration

The administration of cases is the basis of administering justice.

Most courts experience severe case backlogs and are unable to reduce their

caseloads to cope with delay. For example, in 1993, there were approximately

12,000 pending cases in the Supreme Court of Ecuadorcxxi and approximately

500,000 in the entire system.cxxii The Argentine statistics office estimates

that over 1,000,000 cases were pending in the entire Federal system in

1992.cxxiii By 1993 in Colombia, over 4 million cases were pending.cxxiv

Improving administrative procedures requires revision of existing

procedures with respect to inefficiency in record management, caseflow and

case management, caseload management, and maintaining case statistics and

archives. These measures have a significant impact on reducing delay.cxxv

In addition to revising the procedures for administering cases, it would also be

beneficial to include case tracking technology that could assist the courts in

maintaining records.cxxvi In the Santa Cruz district courts of Bolivia, a case

tracking system is being tested on a pilot basis. This project should be studied

for potential use in other parts of Bolivia and, possibly, for adoption in other

countries. Maintaining accurate case statistics is essential to monitoring

progress as well as forecasting future resource needs. Data on current

caseloads will provide a benchmark from which to evaluate new programs and

procedures,cxxvii in addition to providing the necessary information for

budgetary projections. Case statistics will also encourage court research that is

currently being done only in isolated instances in Latin America.

Appropriate case management techniques require courts to be able to

compile data on caseloads.cxxviii The projects must prepare the court

administrative staff to do the planning and research necessary to carry out case

management techniques.cxxix It is also important that caseflow evaluations

be done by the courts as well because this can address questions of delay and

establish time standards for case processing and monitoring of individual case

progress.cxxx An evaluation of the workload is important for strategic

planning and research, resource utilization and operation activities of judicial

and non-judicial personnel.cxxxi Case related data can be used for a variety of

management issues including resource allocation, forecasting, caseflow

management, performance measurement, public information and national

trend analysis.cxxxii In addition, it can also assist in identifying courts that

are operating effectively and inform other courts about successful programs

and procedures.cxxxiii Providing the public with information on cases will

generate support for the courts and also quash false pretensions about the

court's activities and functions as well as educate court personnel on their

important role in case adjudication.cxxxiv The public availability of such

information is also important for providing public accountability of the court's

work as well as for controlling resources that are provided to the

judiciary.cxxxv

To confront excessive delays, it is crucial that a delay reduction study

be conducted in order to identify bottlenecks in the process.cxxxvi Thus, a

delay reduction program should be developed.cxxxvii This is an important

way to measure performance of the system because the study allows

measurable standards to be established as has been done in Argentina and

Ecuador through the Bank's delay studies. The courts can determine whether

the actual case times occur within the limits of the established

standards.cxxxviii Reform programs may also include changes in the

administrative procedures as well as the procedural codes to aid the efficient

processing of cases.

Some have argued that the delay problems may stem from the fact

that judges do not take an active role in moving cases through the

system.cxxxix Over ninety percent of the judges surveyed in Chile indicated

that the judges are passive with respect to case processing.cxl Other such

studies may find that delays occur when cases pile up on a secretary's desk in a

court of First Instance. Frustrated by the system, parties and lawyers are often

willing to pay a special price for an improved quality in court service: to move

cases along fastercxli or fix the outcome of a case, thus contributing to the

corruption in the system and effectively limiting or denying access to justice.

One survey in Peru identified clerks to be the principle source of

corruption.cxlii As a result, addressing the excessive delays in current judicial

systems will help ameliorate the problems with respect to increases in

demands for court services while working towards eliminating corruption and

improve user's confidence in the system.

Recommendations

A review of the current number of personnel should be completed to

determine the actual needs given the court and case management techniques as

well as establish clear terms of appointment, classification of positions and a

system of promotions based on evaluations. This review should also include

any unofficial court personnel. Moreover, if the unofficial clerks were barred

from the courts, it should be noted how much the courts would be impacted

and the potential number of pending cases that would increase. Until

caseloads decrease to manageable levels, it will be inefficient to prohibit such

assistance in the courts, even if it promotes payment for services.

Additionally, a permanent administrative full-time position should be created

as part of the permanent judicial structure. Certain aspects of decentralization

should also be incorporated into the administrative reforms. By relieving

judges of administrative duties case processing times will significantly

decrease.cxliii As mentioned above, requiring technical law exams for judicial

appointment and reappointment may encourage judges to delegate these

administrative responsibilities due to the higher qualifications required.

Exams for court personnel should also be considered.

Judicial reform programs should review the budgetary process and

ensure that there be budget autonomy. Assuming this, judicial budget offices

should be established and staffed with qualified personnel. Programs should

concentrate on providing training for court personnel to manage and prepare

judicial budgets. It is essential that the judiciary not only justify any increase

in judicial spending but also manage the current budgets efficiently. For

example, in Peru the judicial budget increased from 0.6 percent to 2.5 percent

(see Figure III), but every year the Judiciary has returned money to the

Executive because it does not have the capacity to use it. In addition, activities

should also include assistance in decentralizing the administration of budgets

as is being done successfully in Ecuador, where each Superior Court handles

the provincial budget. However, monitoring mechanisms should be in place

prior to any decentralization.

In order to discuss the size of the budget, a review of the budget

should be conducted relative to the total government spending and income in

the country. The main objective of a budget review is to determine how the

given resources can be spent more efficiently. This could be done in part by

comparing the number of cases filed versus the number of cases resolved in a

given court across time. On the basis of the analysis, the allocation of the

budget can be evaluated as well as the possible need for additional investment

to enhance efficiency.

Performance standards should be developed for the judiciary. There

has been some initiative taken in Chile to develop performance standards

(indicadores de gesti¢n) for the budget and personnel, but such standards

should be created for the entire system. It may be worthwhile to create some

regional standards first and then develop country specific standards.cxliv It is

important, however, to mention that these performance standards and

evaluation guidelines should be developed with the participation of the judges

and other judicial actors. Programs should include case management, and

thus, both caseflow and records managementcxlv together with a delay

reduction program and general statistics and information gathering

systems.cxlvi Such activities could be complemented with information

technology,cxlvii as technology can be used to reduce delays.cxlviii First

implemented on a pilot basis in order to learn from them, these measures can

then be improved prior to expanding them nationwide. For example, each

pilot could focus on different delay reduction techniques including case

management methods,cxlix case reassignments, and fast track programs.

Since such pilot programs depend, for the most part, on the people

implementing them,cl training is essential to implement this component of

judicial reform by educating court personnel (judges, secretaries and clerks) in

the new methods and systems for managing caseloads. In addition to the

technical training programs, it is also important to improve the service

mentality within the judicial branch, especially at the trial court level. Judges

can work within the existing legal framework to facilitate caseflow, promote

conciliation and settlement of cases and improve judicial relationships with

lawyers, litigants and court staff.

PROCEDURAL CODES

The Procedural Codes provide the framework for processing cases

and are an important element when considering judicial reform. In some

cases, merely implementing current procedures may be sufficient, while in

others procedural reform may be necessary.cli for example., although there

are time limitations they are regularly ignored. One reason this occurs is that

it may be beneficial to drag the case out until the amount demanded is worth

less due to inflation.clii However, like Argentina and Brazil, some countries

now require judges to adjust awards for inflation. Although the procedural

reforms generally involve the particular procedural codes of each individual

country, some common issues may be addressed: oral and immediate

procedures, time-saving reforms and ex parte communication issues.

Several Latin American countries, including Argentina, Bolivia,

Costa Rica, El Salvador and Guatemala, have chosen to revise their criminal

procedural codes to incorporate oral procedures. Peru and Venezuela have

instituted oral civil proceedings, although they have only been implemented in

Peru. Oral procedures have allowed for public trials, which, in turn, has

helped make judges publicly accountable for their decisions. However,

sufficient training has not been offered to judges and lawyers before the oral

procedures were implemented.cliii This has created a situation where the

judges and lawyers lack the necessary skills for using the new procedures to

their fullest extent. There has been no study to date which compares the time

delays in the courts before and after the implementation of oral procedures.

Moreover, adequate court reporting must accompany the oral proceedings as

was done in 1991 in Trinidad and Tobago in order to assist in the efficient use

of oral procedures. In addition to improving the efficiency of the courts, court

reporting also provides real accountability.

Procedural reform requires an initial identification of procedural

bottlenecks hampering the efficiency of the courts and causing delay. In

Brazil, 82 percent of the judges indicated that excessive procedural formalities

is the cause of inefficient administration of justice.cliv The large number of

appeals are partly attributed to delays in certain courts. For example, in

Brazil, 73 percent of the judges interviewed cite the high volume of appeals as

the leading cause of delay.clv Imposing stricter requirements for filing appeals

may be an option. Although time limitations are essential, judges do not

enforce them with any regularity. In a sampling of cases from Venezuela, for

example, 100 percent of the sample failed to meet the required deadlines.clvi

In Argentina, the codes include set time limitations; however, they are rarely

enforced.clvii The civil procedural code often establishes penalties for judges

who do not conform to the legally mandated deadlines to process cases. In

Argentina and Bolivia, the judge may lose jurisdiction over the case; however,

the available sanctions are rarely applied. According to a Bank financed study

in Bolivia, the procedural process for First Instance cases should not last more

than 42 days, when they in fact last 519 days -- ten times longer.

Additionally, discovery takes six months when the maximum time period is

fifty days.clviii This study concludes that judges themselves are the primary

contributors to delay problems.clix

Revised or properly enforced procedural codes can also reduce delays

and backlogs by providing mechanisms for the early resolution of cases,

including, among others, procedures for facilitating use of alternative dispute

mechanisms. In addition, the procedural codes could also be revised so that

judges have more control to move their cases. In some countries, the

procedural codes permit the judges to engage in settlement discussions with

the parties, but very often the judge does not implement this method of

settlement. The formal discovery process could be improved to foster early

exchange of information between the parties to encourage settlement. For

example, in Uruguay, 60 percent of court actions settle during conciliation

hearings, and of those, 85 percent settle as a result of the defendant's

realization that the plaintiff had a valid claim.clx However, judges, who

currently do not see this as their role, must actively use these mechanisms to

seek early resolutions. Another option for reducing delays that has been used

in Peru and Venezuela is the appointment of temporary judges. In Venezuela,

the consejo will appoint a temporary judge to handle twenty cases.clxi If such

a system is adopted it is important, however, to assure that the quality of

justice is not lowered. This may be done, in part, by providing that the

temporary judges come from the corps of retired judges.

Finally, the last aspect of procedural reform that has received scant

attention in Latin America is ex parte communication.clxii When ex parte

communication is permitted, parties may approach judges and judges can

request to see parties or their lawyers separately. Such ex parte

communication is widely practiced among the legal systems in Latin America,

as the codes generally do not regulate it. Ex parte communication contributes

to the general perception of corruption that permeates the judicial system and

permits such corruption to occur with greater frequency. Procedural reform

must address the eradication of ex parte communication.

Recommendations

Judicial reform programs should place emphasis on enforcing and

implementing existing rules and procedures. Procedural revision should occur

as necessary to complement other reforms. If, however, there is procedural

reform, it first should be done on a pilot basis working within the existing

procedural and institutional framework and should include training. For

example, courts could automatically dismiss cases that have been inactive for

two years assuming that there is prior notification to the lawyers and parties

involved as is done in Trinidad and Tobago as well as courts in the United

States. In addition, the issue of ex parte communication should be addressed

as part of the ethical standards endorsed by the court. In addition, a delay

study should be conducted to identify which procedural steps cause the longest

delays so that revisions can be experimented with during the reform process.

For example, since the termino de pruebas period has been found to be the

longest stage of the process, reforms should address this issue first.clxiii

ACCESS TO JUSTICE

One of the most important issues in judicial reform is the public's

access to justice. The court's justice must be accessible to those who need to

use their services for legitimate purposes.clxiv Access depends on the proper

functioning of the system as a whole. Improved access to justice is essential for

providing basic services to society and meeting the previously mentioned goals

of democratization and institutionalization and redefining the relationship

between society and the state. As noted earlier, the public's perception of the

judicial system is the defining factor determining whether anyone voluntarily

seeks the system's services. In particular, low income citizens tend to have an

especially low level of confidence in the judicial system compared to other

sectors of the population. Moreover, it has been demonstrated that this

perception can effectively be changed. In Chile, for example, it has been

established that poor people who have had no experience with the judiciary

have a 20 percent confidence rate in the judiciary, but those individuals who

have experience with the judiciary have a somewhat improved level of

confidence. clxv The courts provide a necessary public service that should be

designed so that everyone, regardless of their economic means, can access it

taking into account the limited amount of resources available.

Access can be evaluated by a number of factors: the time it takes to

adjudicate a case, the parties' direct and indirect costs of litigation (filing

expenses, court and bailiffs' fees, attorneys' compensation, lost wages, etc.), the

ability of the potential users to have knowledge of, understand and follow the

procedural steps during the life of a case, and the physical access to the

courts.clxvi In other words, a judicial system may present economic,

psychological, informational and physical barriers for individuals who need its

services.clxvii A number of solutions exist to overcome or lessen certain

economic barriers to justice, including reducing incidental costs to litigation,

providing efficient legal aid programs and creating less expensive, alternative

forms of justice.

Alternative Dispute Resolution Mechanisms

Access to justice can be enhanced through alternative dispute

resolution mechanisms (ADR). The delays, inefficiency and corruption in the

judicial system have the effect of encouraging litigants to completely avoid the

formal judicial system, opting for extra-judicial conflict resolution. ADR can

provide parties alternative methods to resolve their disputes amicably without

the delays of the formal system. ADR, at the same time, increases access to a

greater percentage of the population.

One of the most important benefits of expanding the extra-judicial

mechanisms for resolving disputes is to increase the access to justice for a

greater percentage of the population.clxviii Another added benefit is to provide

additional alternatives to the formal justice system. In El Salvador, mediation

provides parties a means to settle disputes without a lawyer and within two

months. This has been especially important for the poor. Initially, judges and

lawyers may feel threatened by the loss of power caused by the additional

avenues provided to the litigants. However, judges should be co-opted by

ADR's ability to alleviate judges' caseloads by removing complex and highly

visible cases from their dockets. Lawyers may also fear that they will need to

acquire new skills and play under new rules. However, they too may find that

in the long run ADR is useful for their clients as well as themselves.clxix

Some projects have even found that parties may abide by mediation

agreements more often than judicial decisions. In Chile, for example, a 70

percent success rate exists for mediation proceedings.

ADR can provide a number of advantages. Well-trained mediators

and arbitrators can provide specialized knowledge. They may provide more

predictable outcomes than the formal court system where judges may not be as

familiar with the subject matter. ADR also provides additional advantages

such as: ADR is particularly beneficial when the parties want to maintain a

future relationship and going to court may further strain their relationship; the

parties want to play an active role in resolving the dispute; the parties may be

more willing to talk directly with the other side in an ADR environment;

finally, if the parties have privacy concerns the ADR system may be better

than the court system. Notwithstanding the advantages of the ADR system,

the disadvantages of formal litigation may be the deciding factor in the

decision to use ADR.clxx A party's decision on whether to go to ADR or the

court system may depend on the speed of the system, ability to choose the

arbiter or mediator or on the party's perception of the possibility of losing the

case in the formal system.clxxi

Although there are many forms of ADR, the most common forms

include arbitration, mediation, conciliation and, in some instances, justices of

the peace.clxxii In many countries, the chamber of commerce provides

arbitration services for contract and commercial disputes. Delays to the

private sector can mean excessive costs and serious problems for business

transactions. Such a service can provide companies with alternative

mechanisms to resolve disputes by arbiters who may be more familiar with the

nature of the business than judges. This can be a tremendous advantage when

the stakes are high. The acceptance and use of arbitration by the Latin

American business community has increased significantly in recent

years.clxxiii However, the procedure has been, by and large, restricted to the

business community.

. Mediation is also a settlement process that "facilitates negotiations

among parties to help them reach settlement."clxxiv In Latin America, the

legal framework for mediation, found in the Latin American codes of civil

procedure, exists but impartial neutral third party mediators are not usually

available. Success rates are approximately 20% when this method is

used.clxxv Very often, it is the same judge assigned to the case that acts as

mediator.clxxvi Such a procedure does not permit parties to be candid about

the case or discuss their settlement positions. In fact, judges often complain

that there are ethical considerations when the same judge is mediator and

decision-maker. Moreover, in many Latin American and Caribbean countries,

the potential for ADR mechanisms as a way of reducing backlog and delays is

lost by the passive mentality adopted by court officers who do not see

themselves as driving forces in the settlement of disputes. Finally, experience

has shown that mediation, in particular, can also effectively settle disputes for

many who cannot afford to litigate.clxxvii

. Justices of the Peace, currently being used in some of the Latin

American countries,clxxviii can also provide alternatives to the formal justice

system.clxxix These justices are sometimes elected by the community, and in

other cases are appointed by the judicial system.clxxx These individuals may

have little or no formal training prior to assuming their responsibilities. The

position may be volunteer or fully compensated.clxxxi Additionally, the

system may require that the justice of peace be law-trained or provide for lay

justices.clxxxii However, if a lay justice of peace system is implemented, it is

especially important to provide training, as is the case in Venezuela.clxxxiii

Consideration should also be given to providing these judges training as

mediators as, in many instances, that is their primary role in society. In Peru,

the justices of the peace propose solutions until the parties agree.clxxxiv In

other countries, the justice may have more substantial powers to impose

sentences and conduct themselves like ordinary judges.clxxxv Some countries

have created well-functioning systems of justices of the peace where cases

decided by a justice of the peace are seldom appealed.clxxxvi The Peruvian

justices of the peace are essential for providing access to justice. However, it is

clear that there is no consistency in how cases are resolved.clxxxvii As

currently being implemented in Latin America, the justice of the peace system

falls outside the formal justice system. The justice of the peace system is a

response to the inefficiency of the judiciary and can provide needed

competition to the resolution of conflicts. However, an effective justice of the

peace system must complement the formal justice system and not add

additional levels of justice to impede instead of improve access.clxxxviii

ADR is becoming increasingly popular in Latin America because it

offers alternatives to the delays and corruption that characterize the formal

judicial system. Additionally, it provides healthy competition for the formal

judicial sector. In El Salvador mediation is being conducted by the

Procuraduria for child support and alimony cases. This program settles 90

percent of these cases in less than two months. In 1993, Argentina

established a mediation center. The Argentine Ministry of Justice is leading

this program successfully because several judges have been actively promoting

the program. Analysis to date reveals that the judges send the most difficult

cases or those that have already been in the judicial system for five to eight

years to the mediation center. Nevertheless, the center has had approximately

a 65 percent success rate in solving these cases through mediation.clxxxix

Family and patrimonial cases have an over 70 percent success rate in

mediation.

Although some countries have established successful ADR programs,

there are several issues that still must be addressed. For example, a decision

must be made as to whether arbitrators and mediators will be a regulated

profession, whether there will be mandated training, and the ethical standards

by which arbitrators should be judged.cxc The barriers to ADR and how they

will be overcome must also be considered. Some lawyers, for example, do not

support ADR mechanisms because they fear losing their clients and fees,

believe that it will be used to delay the process or because they are not familiar

with the new procedures. Additionally, certain judicial barriers exist. In a

number of Latin American countries, including Peru and Ecuador, judges do

not respect extra-judicial mediation agreements (and are not required to do so

by law) because they argue that resolving conflicts is their responsibility

thereby trying to keep hold of their ability to rent-seek. If ADR settlements are

not enforced and respected by courts, they cannot be effectively used for

improving access, reducing delays and cutting costs.

There are several ADR systems that can be established under a

private or court-annexed system. Court-annexed ADR is an ADR program

offered or authorized by the courts.cxci Under the court-annexed system,

ADR can be voluntary where the parties themselves agree to participate or

mandatory where the parties are compelled by the court. Private ADR is what

is normally offered in Latin America by the chambers of commerce or by non-

profit groups. Private ADR also includes international arbitration which is

often used when there is a dispute involving a foreign investor. The Centre for

Settlement of Investment Disputes connected to the World Bank,cxcii the

United Nations Commission on International Trade Law (UNCITRAL) Model

Arbitration Act, and some bilateral investment treaties like NAFTA are some

mechanisms which may be used. However, private arbitration agreements are

enforced under the judicial system. When one party does not abide by the

agreement, the other party may execute and enforce the award in court

In addition to the type of program offered, it is important to identify

what types of cases are appropriate for ADR.cxciii There is no universal rule

as to what type of cases should be included or excluded. Historically, courts

have used mediation and conciliation for domestic-related cases, especially

divorce situations. However, cases of spousal abuse have usually been

excluded from mediation programs because of the power imbalances usually

found between the husband and the wife. In Argentina, these types of cases

have not been excluded from mediation, but the program is too new to tell

whether it has been successful.cxciv However, sensitivity training by

mediators and the possibility of joint extra-court and court remedies may be

sufficient to alleviate these concerns,cxcv especially when there may not be an

alternative forum available. In the case of Ecuador, immediate family

members may not bring legal actions against each other in a court of law. As

a result, the ADR system is the only mechanism available for those suffering

from domestic violence. Many countries use arbitration and/or mediation for

labor cases. By and large, these mechanisms have been quite successful.cxcvi

Finally, an evaluation must be made as to what particular types of cases are

causing backlogs in the court system, whether these particular types of cases

demand more court resources than other cases in the system and whether these

cases would be more appropriately placed in an ADR system.

Court Costs

Incidental costs form barriers for all sectors of the population, but

especially limit the access of the poorer sectors of the population. Incidental

costs to litigation include attorney and notary fees,cxcvii delays of the judicial

system, and court fees. First, simply requiring representation of an attorney

impedes access.cxcviii However, in many instances it may not be avoided.

Additionally, regulated fees and high attorney's fees may prevent a number of

individuals from seeking legal assistance or advice. Lawyer's fees in some

countries increase depending on the number of motions that are filed, whether

the lawyer goes to court alone, or depending on the complexity of the case. In

some instances, a legal aid attorney or a public defender may exist, but this

may increase the costs of the proceeding because of the delays in acquiring

such assistance may entail. For example, in Trinidad and Tobago it takes the

legal aid office approximately three months to process applications for legal

assistance.cxcix Delays in the judicial system can deny access in a number of

respects. For example, although the demand for judicial services has

increased, the courts have been unable to supply the needed services.cc Thus,

in some countries, cases may take up to ten years to resolve thus diminishing

the value of the case or, in some instances, barring recovery and justice

completely. Delays also increase attorney costs, which may prohibit the party

from pursuing a valid claim after the court of first instance. Given the many

appeals available in Latin American courts, such delay causes hardship on

both parties.

The third type of incidental cost is court fees. It is important that

court costs be reasonable, fair, and affordable so as not to deter use of the

system.cci People who file legitimate claims have a right to proper access and

court costs should not prevent people from enforcing their rights. However,

this is not to say that fees should be eliminated. On the contrary, court fees are

necessary in many types of cases and can produce revenues for the

judiciary.ccii Reform programs may consider court fees with waivers for low

income groups. Peru and Ecuador have recently established court fees with

exemptions for certain cases. In addition to the official court fees, the view of

individuals and businesses alike is that informal incentives are required in

order to motivate court personnel, and at times judges, to process cases that

would otherwise remain pending for years. This transaction fee does not

necessarily inure to the benefit of the judicial system by offsetting the

legitimate costs of sustaining a judicial system, but rather simply goes to the

personal benefit of a judge or court official and contributes to corruption in the

system and effectively denies access to justice.cciii

Legal Aid

Adequate and efficient legal aid and public defenders programs

should be made available to provide legal assistance and advice for those who

can not otherwise afford to bring an action or defend themselves in a law

suit.cciv Although some form of legal aid may be available in some Latin

American countries, it is usually limited. Moreover, for these systems to be

efficient, it is essential that the public defender system be sufficiently staffed.

Currently, the number of public defenders is usually minimal given the

demand for assistance. For example, in Ecuador there are a total of twenty-

one public defenders in the country even after an unprecedented overall budget

increase.ccv There are only four public defenders in both Quito and Guayaquil

where there are over two million and three million people, respectively.ccvi

The entire city of Buenos Aires has only 14 public defenders. These public

defenders presumably provide free legal services to indigents in criminal, civil,

commercial, labor, traffic and landlord/tenant cases. Consequently, long

waiting lists exist for those requesting the assistance of a public defender,

creating hardship on those who cannot afford an attorney and cannot obtain a

public defender. This insufficient number of public defenders causes even

further delays in the judicial process.ccvii Finally, it is important to point out

that many Latin American and Caribbean countries provide parties with a

constitutional right to assistance in certain cases. Therefore, the lack of such

services explicitly infringes these individual's rights.

The Ministry of Justice, NGOs, bar associations, or universities all

may operate legal aid offices, in addition to public defenders offices. In Peru,

there is only one lawyer per consultorio juridico and only seven such offices in

Lima. Seven additional offices service the rest of the country. The seven

attorneys in Lima handled 19,719 cases in 1992.ccviii (see Figure 4) These

lawyers generally receive low salaries,ccix which has caused them, in some

instances, to charge unauthorized fees to their clients as is the case in Peru. In

addition, these offices sometimes cannot handle the number of requests that

they receive for assistance either due to the income requirements or the

insufficient number of lawyers available.ccx

FIGURE 4

In addition to legal aid provided directly by government-provided

services, legal aid can be provided through alternative sources, as part of a

training program.ccxi A number of countries require attorneys to provide

legal aid, after law school, in order to become attorneys, while others require

practical training while in law school.ccxii In some countries, including Chile

and Peru, lawyers must complete a specified amount of practical training after

law school. In Peru, young lawyers can choose to complete this training in

legal aid offices, thus providing important resources for these offices. Chile

requires candidates to complete this training in the legal aid offices. Some

countries may wish to consider adopting these practices by requiring new

lawyers to work in legal aid offices, similar to the programs in Belgium,

France and Holland,ccxiii as well as in Chile and Peru.

Small Claims Courts

Small claims courts that handle cases up to a specified dollar amount

is one option for reducing case backlogs in higher courts while improving

access to justice. These courts may help alleviate delays, especially in urban

areas where the delays appear to be more serious.ccxiv Small claims courts in

Trinidad and Tobago handle civil matters up to a specified dollar amount.ccxv

In Uruguay, for example, the small claims filings use simple oral procedures,

lawyers are not required and no appeals exist.ccxvi The public's acceptance of

these courts has been extremely favorable, according to several opinion

polls.ccxvii In order to create a level playing field for the parties and permit

access to the courts where parties may otherwise be barred due to a lack of

economic resources, it is important to consider implementing a system where

parties may appear pro se (without lawyers).ccxviii However, parties should

not be prevented from being represented by a lawyer.ccxix The proceedings

should be oral so that the parties can easily explain their case to the judge.ccxx

This type of court system could allow so-called "neighbor disputes" to be

resolved in an efficient and least costly manner, thus freeing higher courts for

more complex cases. A small claims court which handles only limited types of

cases will provide important access to the public.

Other Barriers to Access

Access can also be enhanced through the availability of collective

action mechanisms.ccxxi Such mechanisms reduce not only psychological and

information barriers to accessing justice, but also economic barriers, while

presenting important issues that might not otherwise appear before the

courts.ccxxii Class actions allow a more efficient, less costly manner for

providing a number of parties a vehicle to bring a common suit.ccxxiii A

slightly different mechanism has been created in the continental European

countries in what is known as the "collective action".ccxxiv Such mechanisms

create an environment that provides more power to the plaintiffs and

minimizes legal costs for each individual.ccxxv Additional measures for

reducing informational barriers include making court and legislative

documents publicly accessible, providing informational material on specific

legal issues, as well as furnishing simplified explanations of how the judicial

system works. Chile, for example, has produced information on how to obtain

a marital separation.

Finally, people should not face physical barriers to accessing the

courts, including geographical and physical access. Courthouses should have

facilities for physically challenged persons, and the court should be open to the

public during reasonable hours.ccxxvi In addition, persons who do not speak

the official language used in the courts should be provided with

translators.ccxxvii This can be an important issue in a country that has a large

indigenous population.ccxxviii The indigenous people may be intimidated not

only by the unfamiliarity of the court system but also by the language barrier,

thus creating additional impediments for the judge's ability to obtain the

necessary information for arriving at a just decision. Ecuador, for example,

does not provide translation facilities for its indigenous populations.ccxxix

Moreover, those persons who cannot read or write must also be provided with

adequate assistance to use the court system, and court personnel should be

trained and instructed to assist people in preparing the formal documents and

filing them in the court.

Gender Issues

Access to justice for women in Latin America is an area that merits

particular attention for a number of reasons. First, because of higher levels of

poverty, deficient education and lack of information, women face

disproportionately higher barriers to accessing justice than other social groups.

Women are more likely to be poor, and therefore, unable to overcome the

previously mentioned economic barriers. Latin American women have a 34.2

percent probability of being found in the bottom 20 percent of the income

distribution as compared to men who only have a 14.5 percent

probability.ccxxx Moreover, because women experience higher levels of

illiteracy they have a much lower level of knowledge about their legal rights

and the judicial system.ccxxxi One survey in Chile found that 30.5 percent of

the women, as compared to 21.7 percent of the men, did not know their legal

rights.ccxxxii Second, a large percentage of the cases before Latin American

courts (one-third) involve family law issues (see figure 5);ccxxxiii therefore,

any judicial reform will require analysis of the problems women confront

within the system.

FIGURE 5.

Total Number of Cases versus Family Cases Litigated, 1994

Finally, although a limited number of issues are highlighted here, all of the

areas of judicial reform must consider and be cognizant of the inherent biases

within the system against women in order to provide for effective judicial

reform.

As previously discussed, Latin American countries are increasingly

experimenting with ADR mechanisms to resolve family law problems. ADR

in family cases has been very successful in many countries including

Chile.ccxxxiv Several NGOs promote and support such ADR mechanisms. In

Peru, for example, an NGO handles women's legal problems through

mediation. The Ecuadoran NGOs have found that family-related cases are the

second largest number of cases. Although, as mentioned above, ADR

mechanisms may not be the ideal mechanisms given the imbalance of power,

it may be the only justice available to women, as is the case in Ecuador.ccxxxv

Other countries have responded to family law problems by establishing family

courts, as in Spain, Colombia, and in the Province of Tucuman in Argentina

while others have expressed an interest in family law courts, including

Ecuador, Peru and Chile.ccxxxvi

The fair treatment of women before the judicial system is

fundamental. Gender awareness programs within the judicial community

(lawyers and judges) should be part of any reform program. In the legal

community, research has revealed that women are perceived to be less credible

than men.ccxxxvii Due to the preponderance of beliefs such as these, women

will not receive justice if such perceptions are not addressed. Although some

of the laws are not gender-specific, the application of the law may be

discriminatory. In other cases, the law does not protect certain rights.

Examples of potentially discriminating applications of the law are family and

labor law issuesccxxxviii and violence against women. Finally, women should

be actively incorporated into the justice system as judges and lawyers in

increasing numbers.ccxxxix

Recommendations

In order to provide competition in resolving disputes, judicial reform

programs should consider both court-annexed ADR as well as private

ADR.ccxl The programs should target the court-annexed ADR systems first

since most of the procedural codes already include conciliation, mediation or

arbitration.ccxli However, since these mechanisms are generally not used,

judges and parties should be encouraged to use these systems and help educate

the public about existing ADR mechanisms, as is currently being done in Peru.

Pilot programs should be established to get courts and judges accustomed to <