Caracas, March 24 to 26, 1999
Chairman
Mr. Secretary General. Please enter in the record the number of countries participating in this II Ibero-American Summit of Chief Justices of Supreme Courts and Tribunals of Justice, on this March 25, 1999, at 8:45 a.m.
Secretary General
Mr. Chairman, Justice Raul Alonso de Marco, Chief Justices of the Supreme Court of the Eastern Republic of Uruguay. Chief Justices or representatives of nineteen Supreme Courts and Tribunals of Justice are attending this First Plenary Session of the II Ibero-American Summit of Chief Justices of Supreme Courts and Tribunals of Justice.
Chairman
Mr. Secretary, please state the general objective of this II Ibero-American Summit of Chief Justices of Supreme Courts and Tribunals of Justice, as well as the topic for this session and its specific objectives.
Secretary General
The general objective of the II Ibero-American Summit of Chief Justices of Supreme Courts and Tribunals of Justice is to: evaluate compliance with the policies and actions established in the Caracas Declaration with respect to judicial organization, corruption, human rights and drug trafficking defined at the First Technical Follow-up Meeting on the Caracas Declaration. Topic of this First Plenary Session: Judicial organization: Specific objectives: Review aspects related with efficiency in the use and expenses of the judiciary budget in order to promote with the other branches of government a common rule that will guarantee the autonomy of the Judiciary of the participating States; and to likewise review the mechanisms for the selection of judges and for judicial stability, emphasizing strengths and weaknesses in the education and training of human resources, in order to define the rules that will govern the School of Education and Training for Ibero-American Court Officers.
Beginning of the session.
Chairman
In the absence of Justice Arturo Hoyos, Chief Justice of the Supreme Court of Justice of the Republic of Panama, who was in charge of chairing the discussion of this topic: Autonomy and budgetary independence and education in Ibero-America, Justice Cecilia Sosa Gómez, Chief Justice of the Supreme Court of Justice of the Republic of Venezuela will speak. Justice Sosa Gómez has the floor.
Justice Cecilia Sosa Gomez
Good Morning. The procedure for this session and all the other sessions is to have one of us give a brief presentation of each of the topics and then to begin the debate by the members of the discussion group, in order to channel ideas and conclusions relating to the topic under discussion, which is fundamentally aimed at addressing the autonomy and independence of the Judiciary in general, and specifically, the topic of budgetary autonomy and independence.
In the name of the Chief Justice of the Supreme Court of Justice of Panama, Justice Arturo Hoyos and in view of his absence, I would like to stress certain elements that might assist us in our discussion, Obviously, we have a working document dealing with "Autonomy and budgetary independence" which is the product. Here I would like to explain that we were able to examine each of the topics that we will be addressing during these two days on the basis of the papers sent by each of the Supreme Courts and Tribunals to the Technical Follow-up Unit. There are a series of elements in the case of "Autonomy and budgetary independence" that will allow us to evaluate the problems inherent to this topic in each of our countries. In addition, there are a number of proposals and conclusions which I urge the members of the discussion group to take into account, and then recommend guidelines to either discuss them in detail, replace them, make them more precise, or correct them. This will provide dynamism for our perennial objective which is to achieve unity among all our Supreme Courts and Tribunals, which will effectively enable us to achieve increased strength and greater consolidation in the continental, hemispheric and Ibero-American spheres.
Specifically, with respect to the topic of "Autonomy and independence", but fundamentally in regard to budgetary concerns I would like to make a number of points. First, almost all our countries begin with the principle of the unity of the National Treasury and this is, to a certain degree, separate from our Declaration of Autonomy as a branch of government and of our independence, which we do in fact exercise and not just affirm. Indubitably, there is a significant relationship between this independence and the resources available to carry out our programs and activities. This matter of the National Treasury is, in a certain way, an element that while being a part of a budgetary principle recognized in all our countries, nonetheless needs to be examined in light of our independence and budgetary autonomy.
On another aspect, many of our countries recognize in constitutional and other legal provisions the budgetary autonomy and independence of the judiciary using either a percentage or some other approach; for example that the budget estimates of the Judiciary cannot be changed by the Executive but by Congress. This is another mechanism that attempts to guarantee non-interference in the judiciary by the other branches of government. Although, there are countries that have this kind of instrument to guarantee the budgetary autonomy and independence of the judicial branch, very often not even such a constitutional provision is sufficient to maintain or defend the budgetary estimates that the judicial branch presents 0for consideration by the Executive or Congress.
An important tendency in all the information received from the Follow-up Technical Unit by all the delegates of the Supreme Courts and Tribunals shows that even though we are guaranteed a percentage and budgetary autonomy, our systems of budgetary planning continue to be marked by criteria established for the Executive. The proposals to safeguard our budgetary autonomy and independence have to be based on an effort to create our own systems and mechanisms of budgetary or judicial planning, to give us a real guarantee of autonomy
If we maintain budgets prepared on the basis of items, sub-items and such specifications that are proper to the Executive and with rules of budgetary preparation and control for bodies fundamentally designed or the Executive Branch, we have an important restriction on the demonstration of efficiency in our work plans. I say this because although the material collected shows that in addition to the force that a constitutional and legal provision of a budget percentage for the Judiciary should have, we have to work for a system of budgetary planning that is adapted to the judicial system, among other reasons because our product, the results of our activity or service, has no value from the traditional point of view used for a more concrete service or job. Our costs are represented fundamentally by allocations for wages -- judges, secretaries, bailiffs, assistants, administrative personnel -- and the material, services, equipment, supplies, maintenance of judicial buildings, courts. A whole range of expenses that have no counterpart in the quantification of investment that is the traditional concept of a budget.
The point I want to make in this introductory aspect of the subject is that although we said last year we wanted a budget adjusted to the needs of the administration of justice and independence based on recognition of our autonomy and our budgetary formulation, I believe we now have to move on to find mechanisms that test the efficiency of the cost of the administration of justice.
Our efficiency should not only be valued by the volume of decisions we make in the judicial system, Supreme Courts and Tribunals as a whole. This is an important indicator, but we have to find other elements, other mechanisms that permit us to ensure that the budget allocated to the Judiciary in each country as part of the national budget -- subject to all accounting practices and principles -- is formulated with sufficient information to demonstrate a good return on our resources. The budget should contain not only statistics on judicial results, but also on programs that are not necessarily directly linked to the product of the judicial system, which is to issue decisions.
In conclusion, we have to make an additional effort to establish some common rules of methodology and approaches in the budgetary and methodological area, which not only preserve our independence and autonomy -- so important to us and essential to our work -- but which include strategic planning that goes beyond our annual budget, for which we may need help from specialized personnel. In other words, to defend a budget in Congress or with the Executive, we need an investment in justice, which produces a common methodology to show to other judiciaries and to the users of our justice system, with the four fundamental points that any respectable budget should have.
First, we have to learn to be good managers; second we have to plan beyond the custom of complying with a budget this year and next year complying with this year’s budget, which means one keeps something back for programs or initiatives because we are conditioned to expect that our budget will always be cut and never increased. We begin to be insincere. We add a little on because we know that at least 10 or 20 percent will be cut.
We are falling into the trap that the executive and legislative branches fall into, which is to prepare for what is definitely going to be a budget cut. We must reverse the criteria, we must prepare the budget with a longer-term strategic approach. This does not mean we cannot have immediate programs but it does mean we must be guided by four fundamental parameters, which are good management, planning, reporting and above all control of budgetary execution, based on the maxim that we have to invest in justice.
The other point that concerns us this morning and with which I end is the selection of judges and judicial stability, and as we have seen in our program in addition to the opening topic, we have incorporated into this second Summit an element who will complement ours, and will enable us at the end of these presentations to improve our discussions. These presentations have been chosen to promote a general debate as well as improving our policies and our actions in other topics.
It is my understanding – as you have already seen in the topics we will cover later – that we will address the matter of judge selection and judicial stability. I would rather prefer to set this topic aside for its timely discussion during the presentations addressing this subject. Thank you very much Mr. Chairman.
Chairman
Thank you very much Madam Justice. Well, we will now start with the debate, or rather, with the exchange of opinions on this subject, briefly outlined by Justice Sosa. There is an established system by which the different participants in this meeting will be allowed to speak, during the time set for this meeting, which would be for approximately for an hour. One hour would be the limit, allowing us to end by 10:00 a.m.
The first member of the discussion group requesting to speak is Justice Jorge Subero Issa, Chief Justice of the Supreme Court of the Dominican Republic, who will now have the floor.
Justice Jorge Subero Issa, Chief Justice of the Dominican Republic
Justice Jorge Subero Issa
Good morning. I want once again to thank our hosts for this invitation to attend this second Ibero-American Summit to be held here in Caracas.
I believe that the words of the Chief Justice of Venezuela, in reference to the words of Justice Hoyos, Chief Justice of the Court of Panama, are among the most important topics to be addressed during this Summit, since they relate to the budget, and nowhere in the world can Justice work, unless it has the backing of a suitable budget.
Maybe, we should determine the parameters to be adopted, so that after reaching a consensus, we will come up with some formal conclusions. In the first place, I think that we should discuss the matter relating to a set percentage of the national budget, to be assigned to the Justice sector, as well as also taking into account the process of inflation affecting all nations.
It is no secret that most of the countries attending this Summit, have a fundamental problem: the yearly discussion of the part of the national budget to be assigned for Justice.
In the specific case of the Dominican Republic, even though the Constitution establishes the budget and financial autonomy of the Judiciary, represented at the top by the Supreme Court of Justice, this constitutional consecration is really a myth, since as Judiciary, we have to prepare the budget on a yearly basis and present it to the Executive Branch, and then, the Executive Branch presents it to the National Congress for its approval or refusal.
We have the same problems year after year, because both the Executive Branch and the National Congress make cuts in our budget.
If the Judiciary budget continues to depend from the political power, without any pre-established criteria, we will continue suffering from the same consequences, and we will keep on having the same problems. The Dominican Republic Senate approved, on its first reading, a project to assign the Judiciary, 2% of the national budget, but unfortunately it did not progress any further, and the project died out. Serious attempts are being made to bring it back to life. But I think that the best way of establishing financing criteria for the Judiciary, without a major intervention of the political power, is through a set amount, a fixed percentage of the national budget. Mr. Chairman of the discussion group, this is the end of my presentation.
Chairman
Justice Alba Luz Ramos Vanegas, Deputy Justice of the Supreme Court of Justice of Nicaragua has the floor.
Justice Alba Luz Ramos Vanegas
Good morning. First of all, the Nicaraguan delegation wants to thank de Judiciary of Venezuela, specially Justice Cecilia Sosa, for the invitation extended to us, to have the opportunity to participate in this meeting and to share with you all the different experiences on the matters to be discussed.
I was looking at the chart we were given, and Nicaragua’s budget is not included. I believe we will sent it you later on. I would like to make some comments on the formulation and execution of our country’s budget. The legal framework for formulating end executing the Nicaraguan budget in is the political constitution, in the Budget Law as well as in the Organic Law of the Judiciary. The political constitution states the foundations for the financial and economic independence of the Judiciary, as established in article 159 of the constitution, stating that the Courts of Justice form a unitary system, with the Supreme Court of Justice at the top.
The Judiciary will not receive less than 4% of the Republic’s general budget, there will be Courts of Appeal, District and local judges, whose organization and operation will be regulated by the law. It is also established that the judicial career will be as well regulated by the law.
However, the Constitution also establishes that the Executive Branch has to formulate the Republic’s general budget and present it for its consideration to the National Assembly. This is where the first discussion on these constitutional provisions emerges: whether the Assembly can change the distribution of the budget made by the Executive Branch, or simply to approve it, since the Constitution states that it will present it for its approval. The interpretation made in real life, is that the Judiciary can change the distribution without altering the budgetary ceiling.
I am going to outline the main provisions we have in the Budget Law on budget execution, in reference to the Presidents of the Judicial and Legislative Branches, and the Electorate. They are directly responsible for the execution of their respective budgets and have the power to distribute the total budget, in accordance to their own criteria. Article 30 provides for the General Budget Office to adopt the monthly installment system, for the distribution of funds, equivalent to one-twelfth of the budget amount approved by the Judicial and Legislative Branches, and the Electorate.
All these provisions refer to the execution. Article 84 of the Organic Law states that in accordance to the political constitution, the Judiciary’s annual budget will not be smaller than 4% of the Republic’s general budget. The Court’s administrative committee develops the preliminary budget, for its presentation for approval by the Court in full session, and its subsequent presentation to the Ministry of Finance, in order to be included in the Bill of the Republic’s budget.
Article 85 of the Organic Law establishes that the Supreme Court of Justice is responsible for authorizing the proper use of the budgetary item, and article 87 establishes that the administration committee of the Judiciary, supervises the budget’s execution.
We find that the coherent application and interpretation of these regulations is the first difficulty we encounter when we try to guarantee a budget, adjusted to the true needs of the Judiciary, because, even though the Budget Law and the Constitution grant autonomy for the execution and formulation of our budget, according to our needs, in true life, the Executive has interpreted that, despite what the Constitution states, is the 4, at least the 4%, the budget they have assigned to us should never exceed, doesn’t exceed 4%, even though the one we formulated exceeds 4%, based on our needs.
Currently, for example, in accordance with the newly approved governing Organic Law, in accordance with the Childhood Code, in accordance with the Urban and Agrarian Reformed Property Law, which makes us create a series of bodies and institutions within the Judiciary, we developed a budget equivalent to 384,500,000 Córdobas, which is equivalent to 6% of the Republic’s general budget; however, the Executive Branch has determined that it cannot exceed 260,000,000, which corresponds exactly with the General Budget of Ordinary Earnings.
These are the main problems we encounter in the formulation of our budget. In accordance with the policies and actions determined in the Declaration of Caracas, we have made some achievements, we have defined policies, objectives and goals for the material needs and human resources for the administrative and judicial units of the Judiciary, taking into consideration their needs, and, also based on their statistics. We gather the information collected from the administrative judicial units, and consolidate them, first at a regional level, and then at a national level. We analyze the request, compare it with last year’s expense to adjust to the policies and objectives of the institution, and then, we submit it for its consideration, to the administrative committee and the Court in full session, before it is sent to the Finance Ministry.
The execution of the Supreme Court budget follows the following process. The budget, approved by the National Assembly, is received by the Court in two ways: one, a centralized fund, corresponding to tax payroll, salary, seniority, insurance, etc., administered and executed by the Ministry of Finance; the execution of centralized funds is lower than the monthly amount; they make savings which are not normally refunded to the Judiciary. And in second place, the decentralized funds corresponding to the twelfth part of the general budget approved for operative expenses, non-personal service, materials and supplies, come from a current transfer.
Analyzing the approved and executed 98 Budget of the Judiciary, we had a 97.85% execution, de 2.15% budget difference corresponds to the budgetary item that the Ministry of Finance failed to give to the Supreme Court of Justice, these are savings obtained in the payroll area, which they manage in a centralized fashion, In some other areas we managed to make some savings due to our autonomy in the internal distribution of the budget, we applied them to other sensitive items of the Court, such as investment, and to cover the personal services deficit corresponding to personnel payments other than payroll.
This is an overview of our experience in budgetary execution since the March 98 Caracas Declaration. Thank you very much.
Chairman
Justice Jorge Eduardo Tenorio, Chief Justice of the Supreme Court of Justice of El Salvador has the floor.
Justice Jorge Eduardo Tenorio
Only a small thought about this very important topic of the budget which greatly influences the autonomy and independence of the judiciary. I think the importance of this opinion exchange is that we reach some conclusions which can eventually act as parameters to strengthen our systems in front of any deviations which may occur and affect the independence of the Judicial Branch. It is clear, as President Sosa said, that the budgetary issue undoubtedly affects the independence and that it is an instrument of political nature, which can inhibit or diminish this independence. But, I do not want to discuss aspects of figures here. I will just talk about our experience briefly.
In El Salvador, at the end of the war, when the peace treaties were signed and the constitutional reform started, some norms modifying the budgetary aspect were introduced. One was to assign a percentage of the State’s current income to the Judicial Branch - not of the nation’s general budget, since they are not exactly the same - a floor percentage of 6% of ordinary or current State’s income. The other one was to grant it autonomy both in the formulation and the execution of the budget, but always leaving two limiting aspects: One that the Legislative Assembly, El Salvador’s Legislative Branch, can make adjustments to this budget, even though the judicial organ formulates it independently.
These adjustments can modify the items or even cut them. Furthermore, the interpretation of the Legislative Assembly is that it can not only introduce adjustments but also make cut-backs. Pending for some time is a debate originated by an unconstitutionality trial, still unsolved, and which will have to make a pronouncement on this aspect of the possibility that Legislative Branch can modify the budget. Concerning the execution of the budget, a problem arises since according to the Salvadoran Constitution management of public funds corresponds in fact to the Executive Branch through the Ministry of Finance, the Secretariat of Public Finances, or whatever it is called in other countries.
The Ministry of Finance has a series of fiscal instruments through which it can indeed define, limit or mark boundaries to that budgetary independence. This has been part of our experience. For example, instruments like cash handling. A delayed disbursement can in essence mean a real cutback. There are then two possibilities or approaches against the execution and the independence of budgetary management. One, that the Assembly can exercise its faculty to introduce adjustments prior consultation. However, prior consultation means only listening to and making decisions according to what has already been foreseen following political patterns. The other, using the Executive Branch fiscal instruments through the Secretariat of Finance. There are, of course, other aspects affecting budgetary development. For example, civil society’s arguments that the efficiency of judicial services does not reflect the investment in justice. For countries with very serious economic and social problems any percentage will always be high. In our case that 6% we have had for six years - and which was really granted only four years ago because the Executive Branch argued it did not have the financial capacity to comply with the Constitution and there was a sort of tacit agreement to breach it. But on the charts you have you will see how as of a certain moment the judiciary is provided with 6% of ordinary income. Another tendency is that this floor figure tends to remain almost unchangeable. We have virtually been unable to increase that six, even if the judicial system requirements have grown and although we have justified before the public sector and the people in general the need for an increased percentage in practice.
On the other hand, perhaps this is another fiscal trick worth mentioning since the State’s amount of ordinary income, which is hypothetical, is fixed by the Executive Branch. Consequently, that 6% which is a figure pre-fixed by the Executive Branch become a sort of straight jacket for us. But the most worrisome aspect is that it affects the independence. The political power can always, in case of inter-power conflicts, restrict the budget through disbursement delays. Perhaps a reality in all countries whereby the intention is to twist decisions of juridical nature which might affect political interests.
All this, of course, does not mean that judicial organs or the judiciary should not start from the basis that they are part of a whole, not only to unify public treasury funds, but because public finances are the State’s finances, not only the Executive Branch’s or the Judiciary’s, and that an irrational attitude from the judiciary could even originate a reversion of constitutional reforms like ours, which are a real conquest in a country where the judiciary was traditionally described as a true Cinderella but which, at the end of the war, made big progress, incidentally when both parts of the conflict agreed on these two points.
Madam Justice Sosa spoke about management and perhaps what is most important is not only obtaining a figure, not only keeping that percentage, but legitimating it through an efficient organization. That is a great concern. But I believe this meeting will yield good conclusions, good resources to avoid this figure being reverted, which is always a latent danger among those that threaten the Judiciary Branch. Thank you, Chairwoman.
Chairman
Justice Raúl José Alonso, President of the Supreme Court of Justice of Uruguay.
Justice Raúl José Alonso
I would like to make a general comment and give some information about Uruguay. Like the lady, we had also sent the information. We had even consulted by phone on the document, but Uruguay’s report on this issue does not appear either. I will not provide data but will simply say for your information that for us, although the Judiciary is largely independent, it can practically manage all the resources assigned to us and, above all, it manages all personnel: judges, civil servants, actuaries, and so on, from their designation, disciplinary point of view, etc. All of us who are presidents or ministers of the Court are aware of the financial resource topic and how it weighs on the performance of our service.
In our system the Judiciary has a right of initiative in the budget, but then remains under the arbitrage of the Parliament which in the end always cuts back what the Judiciary requests. We, in turn, are prudent and never ask for what is really needed. This problem is so deeply felt that the Court has expressed during some constitutional reforms during these past years the need of modifications in this sense, but always without luck.
At present, Uruguay’s Judicial Officers Association, the Bar, and the Republic’s University, are in the process of collecting signatures to see whether during the next elections there can simultaneously be a plebiscite on the reform of this article on the Judicial Branch’s budget. We believe it is really important for the judiciary to have a relatively wide margin in financing of our services, of course, within the State and without ever pretending to exceed the real economic capacity of each of our countries.
In Uruguay the percentage we have is always less than 2% of the budget, but I think this figure is not relatively too low because Uruguay’s budget has traditionally been very high. It is a country which had a great national development and therefore the State impinges very much on the general cost of the country. Therefore, the 2% we have, which in fact fluctuates between 1.80 and 2.20 but not more, is relatively high but always insufficient to improve the service.
However, we have - and I do not know whether this is clear in the conclusions - the possibility to manage the budget. That is, practically the only limitation we have is the total budget. Within that we can manage, make transfers, create positions, and modify allocations, provided we do not exceed the total. This provides great adjustment capacity to new circumstances and handling of service organization totally independent from the political power. I believe this topic should be included in the conclusions, concerning participation of the Judiciary to manage freely, or with the least possible hindrances, the allotted items.
Another subject which I would like to mention is one which I think is not in the conclusions. We could say, supposedly yes but no, from which I have read. It is not expressly established with the energy and the strength that we need of really having a budget which has an important participation within the State’s expenses. One insists, from what I saw, on the management issue, on the evaluation issue, on which naturally we fully agree. I could also add, concerning Uruguay, that perhaps we must advance a lot because at times we do not have an administrative team sufficient enough for this purpose. But, if together with that we recognize the need to manage and to adequately use the resources, we would also have to expressly say and beforehand, that we should be given the necessary resources to affirm the Judiciary which in turn, naturally, as we all know, is a necessary budget by rule of law. Thank you.
Chairman
Justice Carlos Mario Beloso. Vice-president of the Supreme Federal Tribunal of the Republic of Brazil.
Justice Carlos Mario Beloso
Presidents of the Supreme Courts, judges, ladies and gentlemen. My first words are of praise for the Supreme Court of this country for having promoted this second meeting, this Second Summit. Let us talk about the issue.
I would also like to communicate the Brazilian experience on this point. The Brazilian Constitution takes well into consideration the issue of the Judiciary’s independence and the Brazilian Constitution confers certain guarantees of independence to the courts and within these guarantees of independence there are the administrative autonomy and the financial autonomy, both significantly reinforced by the 1998 Constitution. That is, Brazilian courts have administrative autonomy, elect their leaders. Therefore they practice self-government, elaborate their regulations, nominate their civil servants.
Concerning administrative autonomy, they elaborate their budgets. In Brazil there is national justice and state justice. The Supreme Federal Tribunal is the leader of the judicial system. Following are four high courts constituting the leaders. The high court of common justice, the electorate high court, the labor high court, the leading labor court, and we also have military justice. A military high court which is the leader of military justice.
In member states we have justice courts and legal judges. The appellate courts of common federal justice are the regional federal courts, the second appellate court of labor justice, the regional labor courts, and the appellate court of electorate justice, the TRS. All those courts have administrative autonomy and financial autonomy. The Supreme Federal Tribunal is charged with the elaboration of its budgetary proposal and forwarding it to the government institutions. Also the high courts with respect to their own, to the sectors of their justice.
The Supreme Federal Tribunal, which is also Brazil’s constitutional court, signed jurisprudence in the sense that the budgetary proposals are sent to the Executive Branch which cannot reduce the budgetary proposals, reduce that which was requested and that the courts propose to declare. There is a law of budgetary guidelines to be observed in the elaboration of those budgets.
The Supreme Federal Tribunal has in the meantime decided that the National Congress in what concerns federal justice can reduce budgets. Concerning state justice, the state legislative assemblies could reduce those budgets. We do not know, however, of any significant reductions by the legislative assemblies or the National Congress.
The question of limits in what concerns the judiciary of the union to the federal judiciary, one should not talk about limits. It is then what the courts understand is necessary for the execution of their work. Some member states, because we practice federalism, based on their autonomy have set up limits for the state judiciary. Paraná State set up close to 5% of its gross income. Other states also proceeded likewise. The courts, however, went to the Supreme Federal Tribunal through direct actions and of unconstitutionality and the Supreme Federal Tribunal understood it would be unconstitutional to fix those limits.
Our eminent president, Madam Justice Cecilia Sosa, stressed the management and planning matter. We believe these are two very important issues. They are now being discussed in Brazil. Some courts based on that financial autonomy in the execution of budgets. I would like to mention that some, perhaps 1% were not too lucky in budgetary negotiations. The accusation that courts built sumptuous buildings, the accusation that some low court judges were somehow cast out to lower positions. Then we started discussing management of the budgetary negotiation. There are proposals suggesting that an organ of the judiciary centralizes budgetary proposals, that is, the proposal in the sense that it is firm and that the judiciary’s financial and budgetary autonomy becomes concrete. The judiciary would have budgetary autonomy and not the courts. This is today a proposal being discussed in Brazil, at the National Congress and at the High Courts.
We would then have a Judiciary National Council with incumbency to administer proposals, receive the courts, and elaborate the budget. This is what is now being discussed in Brazil and has become polemic since al present each court is autonomous and none would like to lose said autonomy. This is, in a few quick words, the Brazilian experience concerning judiciary autonomy. Thank you.
Chairman
Justice Julio Salvador Nazareno, President of the Supreme Court of Justice of Argentina has the floor.
Justice Julio Salvador Nazareno
I would like to refer to an issue also mentioned by our honorable Brazilian colleague. I think we are discussing the Judiciary’s participating percentages in the nation’s general budget. Argentina has an Autarchy Law in force of around 3% which, of course, with a subtle interpretation by the Ministers of Finance does not include provincial participation, drops to slightly over one per cent. Nevertheless, my concern - something I have already mentioned at other meetings - is the management of this budget. If I am not wrong, there are more than ten Latin-American countries whose budgets are managed by the Judiciary Council. This is an important topic. It is an important topic with a big role in the autonomy and independence we are claiming for the Judiciary Branches.
I do not know in detail the organization of these Judiciary Councils in Latin-American countries, but my country, Argentina, incorporated at the end of last year a Judiciary Council charged, among other things, with the administration of the nation’s judiciary budget. Evidently, the Court elaborates its budget as head of the Judiciary Branch, sends it to the Judiciary Council which has an Administrative-Financial Court where it is considered, gets remarks, and may or many not return to the Court for approval. The point is that this Council’s Administrative Court will be the one to administer the Judiciary’s funds. Just the same as it occurs with you there is always a shortfall or not enough and that is my concern, because in this Argentinean legislation the Chief Justice of the Court is, in turn, the President of the Judiciary Council. This is a situation that is difficult to handle because I head both those bodies that at times take opposite stands, and I am not just referring to the stands taken here by Latin American councils, but also to the vast political content which I will address in my presentation. What I am referring to is the famous participation or the opening up of the Judiciary to participation by citizens through their congressmen and senators.
Represented on this Council are 8 congressmen, 2 academicians, and 4 judges; consequently, we have to consider that this new Judiciary Council will have funds which it will have administer and will have to tell each court and jurisdiction how much each will receive. This body, which as I have pointed out, is in the minority, will definitely be the one that allots funds to the different jurisdictions of the Judiciary in this country.
I am not criticizing this. I once discussed the topic of the Judiciary Council and everyone understood that there had to be a direct dependency on the judicial branch, represented by the Supreme Court of Justice of the Nation. Look, this is different from what my Uruguayan colleague said. For example, I have my budget and handle and spend it as I deem fit and I can also modify the budgetary items. This structure represents true autonomy in Uruguay. Argentina and maybe some other countries represented here may not have these powers. The Council is the one that will distribute funds to each of the court jurisdictions; therefore, this is a concern that we must continue to bear in mind. I don’t want to dwell too long on this topic because we can err by criticizing this body which is currently in vogue. The Judiciary Council is already in place in most countries. Following the European tradition – Italian, Spanish, German – it has now been imposed on us here in Latin America. But I do want to be an alarmist.
We are not distributing funds to the judicial branch. There is rather an entity comprising politicians and academicians that are not of the judicial branch, but are members of the Judiciary and they are the ones that are going to distribute the funds. I was reminiscing with a friend from Colombia – I wasn’t Chief Justice yet at that time; I believe we were in Washington -- and he told me that he could no longer attend these meetings of Supreme Court Chief Justices. When I asked him why not, he replied that he doesn’t have funds; the Judiciary Council no longer gives him funds to cover travel expenses. Look at the degree of dependency of certain heads of the Judiciary in Colombia. This is an anecdote and I leave you with this problem brought to light. You have 2%, someone else has 3%, I have 4%, you have 2%, etc. These are simply figures over which we will obviously be fighting for the rest of our lives. There will always be shortfalls and insufficient funds to cover all our needs. However, let us consider this other problem that is more serious and which we must analyze more in-depth than the percentages applicable to the Judiciary. If the head of the Judiciary will not be handling the funds, but if rather these will be managed by congressmen, senators, academicians, representatives from other social spheres in this "citizen participation" about which I am to speak --- and I have to agree that this is good – I must insist that clear an concise rules for such participation must be established. Hopefully, we will not have another year in which I will have to say I can’t attend the Summit because, as in the case of my Colombian colleague, there are insufficient funds for this purpose. I just wanted to make this point and then we will continue the debate.
Chairman of the Discussion Group
The Chairman takes the initiative to request that the members of the group express their opinions, but that they try to be as brief as possible because there are five persons who have put their names on the list and only a quarter of an hour remains. Therefore, the request stands and I give the floor to Mariana Vega Rodón Associate Justice of the Supreme Court of Puerto Rico.
Justice Mariana Vega Rodón
As in Argentina, we are also concerned about budget distribution. In Puerto Rico, the Chief Justice handles the budget through a centralized administration. The legislature, however, has the power to allot certain funds to specific projects so that we cannot touch items of this type.
I understand that internal budget handling is essential for an appropriate judicial policy. We are the ones who know what our needs are and can plan and determine our requirements for the future, and usually other factors do not come into play, which are considered and handled by the Executive and Legislative branches.
Our Constitution allows the Executive to create judicial seats (courts) which has generated a series of problems because, although this is supposedly done with the Council from the judicial branch, in reality the criteria are political and often certain courts are established for reasons quite different from purely judicial needs. As a result, our budgets have to cover those courts that have been created and that possibly may be of no use or of very little use to the judicial system.
We recently passed a statute to require revenue stamps to be affixed to documents sent to the courts. The money that was collected from the sale of those stamps goes directly to the budget of the judicial branch and does not go into the general budget. It is an additional amount.
What is important is that we are now being allowed to grant loans to the government bank using that money as collateral. This allows for certain flexibility between budgets. We are testing this modality now so I can’t really tell you whether it is working well or whether it will function poorly, but it is an additional instrument that we can use to obtain additional funds. As in your case, the funds that we are assigned by the Executive branch and which are approved by the legislature are insufficient for our needs. Thank you.
Chairman
Oscar Aramando Avila, Chief Justice of the Supreme Court of Honduras: Good morning honorable Ibero-American colleagues. Thank you Chief Justice Cecilia Sosa for the attention you have paid this delegation.
Justice Oscar Aramando Avila
The reality is that we live and experience this budget problem on a daily basis. We have broad powers for preparing and distributing the budget, but in the final analysis, it is the Executive and Legislative branches that have the final say because if they want to they can trim our budget. Usually what occurs in Honduras is that we will have a budget and although the Constitution specifies that it should be at least 3% of the National budget they never give us that 3%. Right now it is 2.12%, which does not satisfy our expectations.
We have changed a series of systems and are really concerned by the incorporation of the oral hearings into criminal cases because we will have to change the physical structure and build courts, all this while our budget hasn’t improved. Lately, from about 1996, our budget allocation has improved somewhat because prior to that time we would be allotted 1%, which was really paltry and insufficient to cover our needs. We have been fighting to receive at least 3%, but as was stated by representatives from the other Central American countries, this is a problem where the judicial branch --- and this is the crude reality – is the "poor relation" of the other government branches and organizations.
We are sometimes criticized for administering justice poorly, but they don’t give us sufficient funds to improve our performance, to improve salaries; the latter being a serious problem in Honduras. Our top court officers, our judges earn very little. They have no privileges. Nonetheless, I do agree with the comments of the Chief Justice of the Supreme Court of Argentina to the effect that we have to be very careful with this Judiciary Council because the trend in almost all international organizations is to take us in that direction. Right now, in Honduras, we distribute our own budget. I am the Chief Justice of the Supreme Court and, therefore, the Court has granted me broad administrative powers and I can proceed as I consider best with the budget of the Nation.
I have discussed this Judiciary Council with colleagues and some are quite concerned about what may occur in the future because this is where true independence is lost, since other functions outside the judicial branch make its decisions. I believe that we should reach a consensus to prepare an in-depth study regarding this matter. We should also voice our reservations in this regard because almost all the international organizations and studies prepared to date are leading us in that direction – toward a Judiciary Council, and indications are that the effects are not as positive as one would expect. It is a burden sometimes to be in charge of administering and at the same time overseeing the juridical structure. It is a problem for one Chief Justice and I believe that another mechanism should be found, one in which the Judicial branch manages its own assets and where the Chief Justice is the one that really knows what is happening.
Sometimes we encounter problems generated by the creation of new courts. The power to create courts in Honduras is a power that belongs to the legislative branch. The legislature creates them but doesn’t increase our budget, generating very serious problems for us. We have asked Congress to give us that power over our needs, but our request has been denied.
Consequently, I believe, honorable representatives of the Supreme Courts, that we must be very careful with this idea of a Judiciary Council. Thank you.
Chairman
Armando Torres Paulo, Deputy Justice of the Supreme Court of Justice of Portugal.
Justice Armando Torres Paulo
Good Morning Mr. Chairman and greetings to all my esteemed colleagues. It is with a measure of surprise that I am here because the Chief Justice had to travel to Macao, and the other Deputy Justice who was to have attended this summit and whose area is criminal law --- since my topic is drugs – was suddenly taken ill. Consequently, although my area is civil law and I have come here to speak about drugs I was asked to fill in and ask for your patience.
With respect to this topic, Portugal believes it is among the countries in which judges are truly independent. For example, the Chief Justice and the Deputy Justices are elected by the 80 judges comprising the Supreme Court. There are 80 or 82 judges and only 60 are working in the Supreme Court because 22 are assigned to service-related commissions. In the event of any type of serious government problem, a Supreme Court justice is immediately called to serve on a specific commission. For example, in the case of the appellate courts the respective chief and deputy justices are also elected by the respective judges and we have a body that is the superior council of the judiciary, or body in charge of self-governing the judicial branch. This is the body that will classify, inspect and promote all judges, as well as transfer them because it has disciplinary powers and is comprised by judges that are elected by all the other judges, as well as elements that are elected by the Congress of the Republic.
This means that the executive branch has no function within the judicial branch except for one area; the Executive has financial power. The problem you have, we do not have. Each court from the lowest to the Supreme Court has its own budget, but it is a limited budget so that the expense is more or less predictable. If, for example, Portugal were to be invited to host a conference like this one, the Supreme Court would have to say: wait 15 minutes because we have to request the required funds from the Minister of Justice. It would be an unforeseen and additional expense and not in the Court’s budget. Thus, there are no funds for other expenses, in cases like that we have to go looking for money. Consequently, the Minister of Justice has authority – I see that now --- over the financial aspect and I have learned that small lesson here, today. As a result, I no longer consider myself to be as independent as I did before sharing ideas with you. I have learned many things and will return to my country to talk with our Minister about this. Thank you.
Chairman
Well, it is almost time. I will speak with Justice Sosa and ask for a short extension because I believe that this is an important and fundamental topic for our judicial branch. I appeal to the people who are on the list to speak, to synthesize their ideas so that we can hear at least the opinions of the representatives from Costa Rica, Spain, Colombia and Paraguay – this is not the correct order, but then --- oh and Venezuela too. First to speak will be Orlando Aguirre Gómez, Justice in charge of the Second Division of the Supreme Court of Costa Rica.
Justice Orlando Aguirre Gómez
Thank you. Both at the last summit as well as at this one, it was made patently clear that economic independence is an indispensable condition if real administration of justice is to exist. As you know, or at least as most of you know, in Costa Rica we have had budgetary autonomy and we have moreover had administrative independence in the judicial branch since 1959. I believe that this has been very important for the development of the Judiciary as an important element of governance in our country.
Although many of our countries have made important strides in this direction, I believe that we should always be on the look-out and continue to insist in the fact that this is the correct direction. There are many factors that threaten this model, this form of organization for the judicial branch. First, and we hear this every day, there is no dearth of persons without a juridical culture who say that "the administration of justice is not the appropriate recipient of our investments." This was pointed out at the very beginning by Justice Sosa who today, thank God, is changing this way of looking at things. There are still international financial organizations that are worried about the administration of justice but are nonetheless investing because, without a doubt, it is an important element for the peaceful coexistence of our peoples.
That we encounter such persons without a juridical culture is negative in itself, but we will also encounter difficulties in political strategies. The politicians, whether by means of impediments in execution, or as is occurring in Costa Rica, by transferring activities to the Judicial branch that before, for example, had been financed by the Ministry of Justice, are allotting to other activities the 6% of the budget that we used to receive. For example, in Costa Rica the office of the government attorney and its immense structure, including the Criminal Investigation Department, national security and other lesser areas have been progressively transferred to the judicial branch. We need to be more careful.
There is another aspect addressed here today that merits stressing and it is the danger of a loss of prestige by the judicial branch if it does not have sufficient autonomy to manage its own budget; and if we do not administer ourselves well, if we don’t generate results, if we are not efficient, critics will be quick to say: "why are we giving them so much if they are ineffectual." Consequently, to achieve this economic independence, administrative independence implies a commitment by all of us do things efficiently. I believe that the mechanisms that Justice Sosa recommended from the beginning are ideal. Without a doubt we must have planning, we must have good management, and we must also compile good statistics in order to use them as tools in our work.
I think this is a very important aspect and the judicial branch in all out countries should make a commitment to administering justice efficiently because this is the best way of defending what we have won, and of motivating people who at this time are non-believers – the politicians who at this moment do not believe – to allow us to have these types of organizations. Thank you.
Chairman
Justice Enrique Antonio Sosa Alizeche, First Vice President of the Supreme Court of Paraguay
Justice Enrique Antonio Sosa Alizache
Thank you Mr. Chairman. I will try to be very brief. I want to take this opportunity of saying that I am here despite the serious political crisis that is affecting my country. I decided to continue in Caracas where I heard the news of the serious political problem in my country because I have confidence that the conflict in my country will be channeled and solved by institutional means. In addition I am here in response to an express mandate by my country’s Supreme Court. I was told by telephone that the High Court wanted me to be present at this important meeting. This is why I am still here and because of a wish to share this important experience with you.
In my country, we too have the problem of the use of financial resources. The Constitution establishes a minimum of three percent, which is considered as a ceiling by most people, for no real reason. It has been and is still very difficult for us even to obtain this minimum percentage, despite all our efforts but we are gradually obtaining recognition by the Legislative branch to which we present our proposed annual budget.
The problem is that the Supreme Court administers these funds since the judiciary has budgetary autonomy by constitutional provision. Thus the Court has administrative as well as its jurisdictional functions. This is the function of administering the administration of justice. The Constitution states that the Court is responsible for superintending the judiciary, which removes the danger of transferring this function to bodies outside the judiciary because it that would violate a constitutional provision. However, the task of administration for the Supreme Court is an arduous task. We are therefore also analyzing and studying a system of management under the supervision and control of the Supreme Court through a body that forms part of the judiciary.
The problem of the budget is the need to respect the proposed distribution of budgetary allocations. The Supreme Court has to state its needs but these are not always not taken into account by Congress if they are distributed in a way that is not in accord with stated needs. We believe it is desirable that even the distribution of the percentage of the general budget earmarked for the judiciary be done by the Supreme Court, which knows the needs of the organization of the system of justice. Our experience is that the concept of the judiciary is very broad because there are organizations or bodies that technically and financially are attached the judicial branch, but which do not perform truly judicial functions: property registers, vehicle registers, even the public prosecutor’s office and attorney general come under the judiciary budget, which reduces the real percentage devoted to judicial activity as such.
With respect to financial resources, we have the same difficulties I have been hearing from you and to a certain extent this compromises our independence at risk. Our constitutions have established minimum percentages and budgetary autonomy to guarantee the absolute independence of the judiciary with respect to its jurisdictional activity and its political activity of control of the other branches of government, in this system of checks and balances. This is why the subject of the use of funds is very important.
In our country we have our own revenue for the judiciary from judicial taxes and charges. The Supreme Court is now attempting to take over the management of this revenue, which is very important for some of the projects we have; particularly infrastructure projects. We have heard of the same situation mentioned by the Honduras president, with reference to the implementation of oral trials, which require an appropriate physical space. But with respect to other resources, which are funds from the Treasury, there are difficulties of availability.
This is the experience of my country, which I wanted to share with you to analyze all our reciprocal experiences. Thank you, President.
Chairman
Justice Bruno Otero, Member of the General Council of the Judiciary of Spain.
Justice Bruno Otero
I am going to talk, very briefly, about the General Council of the Judiciary of Spain. I do not know if it is the same in Argentina, Honduras or Costa Rica. I will then go on to what I believe is the main question we have before us today, which is the budgetary problem of the judicial authorities, in its broadest sense. I will conclude by trying to define what unites us, rather than what separates us, because it is difficult to reach a conclusion if we do no accept things that unite us, which I think are many.
First, constitutionally in Spain the General Council of the Judicial governs the judiciary, and its president -- as in Argentina -- is president of the Supreme Tribunal. It has 20 members, of which I am one: 12 are appointed from among the judges and eight from distinguished jurists. These appointments are made by the Parliament of Spain, which represents popular sovereignty.
Incidentally, I would like to reassure my colleagues who warn us about the Council of the Judiciary, because my experience – at least in Spain – is that Spanish judges have great sensitivity to political, social and economic problems.
On the budget question, establishing the criterion of a decreasing budget is not good because the government or executive tend to adapt to the budget. If a minimum of 3 percent is set, the budget is never increased and in some cases, as mentioned by other speakers, does not even reach that minimum. We have to fight every year to get the funds, as all institutions in all States have to do. Every year we have the problem of claiming funds for the public administration, for public institutions, there is no reason why the judiciary should be any different.
I am one of those in Spain in the Council of the Judiciary who advocates an independent and ideal budget for the judiciary -- in the broadest sense, whether Parliament or General Council of the Judiciary -- an independent budget that also covers material resources. But our starting point has to be social reality, not only the social reality of Spain, but also of the European Union, because when making the budget, the European Union gives very specific instructions to governments on limits on public spending. This is the social reality we must recognize in order to keep our feet on the ground.
How do we make our budget? The budget has several chapters; the first relates to the pay of the personnel of the Council of the Judiciary and its officials, not including the judges in the councils.
The second chapter covers judicial training and spending on the Judicial
School in Barcelona, along with International Cooperation including Ibero-American Section, with magnificent results. The third chapter relates to the Judicial Documentation Center (Cendoj), which collects all legislation and case law. I have ordered two CD-ROMs with all this information for this organization and for the International Court of Human Rights.
Judges’ pay in Spain is decided by the government. Currently, there is talk of raising their pay, based on the report of the Council of the Judiciary, which in turn represents the claims of the judicial associations. This is a network that starts from the bottom up and eventually produces a pay claim that is sent to the government for consideration. Usually the government tells the judges they must accept a more or less standardized rise along with other officials. On the other hand, we maintain a different criterion since the judges are subject to special circumstances because of their incompatibility in the exercise of a series of functions. As a member of the General Council of the Judiciary, I would like the Council to have the power to set judges’ pay. This would solve the problems we have today with the judges, whose pay should be put on a dignified basis.
In this respect, I understand that -- at least for the time being -- all the judiciaries represented here have to cohabit with their governments, there is no other solution. I don’t see why we have to cohabit but we have to do so for the time being. It may not be ideal and I am going to propose something in this respect.
In Spain, we plan the budget of the General Council of the Judiciary with absolute independence and then send it to the Ministry of Economy and Finance. The ministry does not usually object to the budget proposal, which is included in the general state budget and sent to Parliament.
The Parliament on many occasions tells us that the budgetary allocation exceeds the rise in public spending allowed by the European Union and I advise that this can be lowered and put in another chapter. This is how our cohabitation works. If the Ministry agrees, it sends the proposal to Parliament and defends it there as representative of the Treasury. If there is no agreement, it is sent back to us for any changes, which we may or may not decide to do. Then we have to defend it in Parliament.
We cannot never forget that parliament represents the popular sovereignty. This is why I say we are realistic, we have to have this cohabitation with the government on the budget.
But what I want to do -- as I said at the beginning – is to reach some conclusions that unite us rather than separate us. For me what unites us is that we all want independent budgets, whether by the Court or the Council, with no interference from the executive. Later we have to seek independent management, transfers of credits from chapters do not need to go through the Finance Ministry or executive. Absolute independence and autonomy in the management of the budget is the goal. Lastly, the possibility that the courts or council defend the budget directly in parliament, because it can happen that we do not have the necessary agreement with the government on the budget. These are my three proposals. Thank you.
Chairman
Dr. Fernando Enrique Arboleda Ripoll, Vice President of the Supreme Court of Colombia.
Dr. Fernando Enrique Arboleda Ripoll
I will try to be as brief as possible. In the constitutional model of my country the budgetary autonomy and independence of the judiciary is also in deficit. The initiative of preparing the budget is in the hands of the Superior Council of the Judiciary, which has to reach an agreement with the other bodies comprising this branch of government, as well as planning and evaluating needs with a view to presenting the draft budget for the sector to Congress.
Finally come the deliberations, the system of priorities that the legislature establishes which define whether or not the demands of the judicial branch will be accepted. In my country, experts on the subject are concerned how this situation is affecting the reconfiguration of the judiciary, with the restriction on budgets because we are submerged in a deep fiscal crisis, resulting in restrictive policies on public spending which includes the justice sector. This has caused the judicial system to reconfigure itself. For some time the occurrence of vacancies in the judiciary has forced the Superior Council of the Judiciary to eliminate posts and even change the specialty of the judges. For example, the deficit in judges for the family jurisdiction has meant transferring judges from criminal jurisdiction. Judges with a very narrow specialization, who had made a career in that area end up as judges about to retire who have to learn a specialty that is completely unknown to them, and this has an effect on the budget
The most dramatic aspect is that a mega-body created in my country -- the Commission of Rationalization of Public Spending -- has recommended no budget increase for the judicial sector for the next three years. They have established that the performance of the judicial apparatus does not respond to the social expectations created using figures on impunity whose sources are unknown. These statistics contradict those of the Superior Council of the Judiciary, as well as the mathematical criteria of the National University, which show that impunity is three times less than the figure used by the Commission.
This situation occurs because the ideal of budgetary autonomy has not been achieved, and fundamentally because the judiciary’s initiatives in this field are not respected when the legislative branch defines the General Budget Law for the year in question. Thank you.
Chairman
To conclude this exchange of opinions,
Justice Cecilia Sosa Gomez, President of the Supreme Court of Venezuela.
Justice Cecilia Sosa Gomez
First, I believe that many ideas and proposals have been made in the discussion groups, which could lead to conclusions in the area of the budget. I would like to add some remarks to what we have heard, based on the working document and on the results of the session itself. I refer to the evaluation of the work of the judiciary in our countries, which is normally evaluated by the volume of decisions produced by the system, not by the volume of cases that enter the courts. For this reason, I want to stress the need to improve the statistics
Second, it is very important that we are aware that the problem of the capacity to respond to the caseload of our courts is also a product of laws that overload the judicial structure. Once laws are passed their economic-financial impact on the judicial system is never evaluated. A good proposal in this respect would be that when the Parliaments or Congresses of our countries pass laws that grant specific authority to any of our courts, they quantify the impact their decision will have on the judicial system.
The other point I want to make -- I do not want to weary you with the Venezuelan case because that is not the point -- is that our working document has two parts: the budgetary part and mechanisms of selection of judges and judicial stability. I want to propose that as the commitment we made was to prepare a study on the application of the mechanisms of selection of judges and the judicial career in participating countries, we agree to conclude the contribution to the Follow-up Technical Unit, so that the study receive all the required information, bearing in mind that we cannot obtain information from all our countries.
A point of interest is that at the follow-up technical meeting held in Caracas last year, we discussed setting guidelines for the School of Training and Preparation of Ibero-American Judicial Officials, which appears as a conclusion on page nine of the working document. Could the delegates make an evaluation on this point and present any considerations to the Secretary so it is not left as if no statement was made on the matter. Thank you.
Chairman
We will meet in 15 minutes, please.
Chairman
This morning, Justice Carlos Mario Velloso, Deputy Justice of the Federal Supreme Court of Brazil will have the floor.
Justice Carlos Mario Velloso
Honorable Chief Supreme Court Justices, honorable Justices, honorable Chief Justice Cecilia Sosa, Chairman of this discussion group.
I am here to speak to you about the Judicial Management of the Juridical Information Systems. In Brazil we have made great strides in juridical and judicial information systems. As we know, the basic mission of the Judiciary is to solve, to resolve problems between people, in enforcing the specifics of the law of conflict of interests. There are countries where the Judiciary has the jurisdictional monopoly, while in others there is no monopoly, like, for example, in France, where we have ordinary justice and administrative justice. In Brazil, following the U.S. model, the Judiciary has the monopoly of the jurisdictional function; also, the Judiciary in Brazil is a political power, because we have adopted the control and the consonality systems of the United States, each judge or court makes consonality controls.
The 1988 Constitution consecrates the substantive of "...Law", meaning with this that any judge or court can examine whether the law complied with the reasonability and proportionality principles, and we also adopted a concentrated control, as it is performed and practiced by the Supreme Court, after the Continental Europe model. Thus, in Brazil we also have an explosion of processes, because the 1988 Constitution eases the entrance or the access to justice; these processes, the solution to these processes is based on preexisting procedural laws, they are tools, and we are adopting information systems as an additional tool.
I already briefly explained hoe the Brazilian Judiciary fulfills its mission. We have the Supreme Courts, the Superior Federal Court, the superior courts, which are at the top of the common state and federal justice, The Superior Court of Justice, electoral justice, labor justice and military justice, we have one military justice. Discussions and debates are currently taking place in my country, about whether military justice should or not continue.
One can say that the number of cases we tried, came as an explosion, an explosion of consequences. The Supreme Court tried in 1988, closely to 50,000 cases. We are eleven, the chief justice does not judge, thus we are ten. You can imagine the amount of cases ruled by each Federal Supreme Court Justice. The Superior Court, the top of common federal and state justice, ruled closely to 100,000 appeals, 100,000 case files. There are 33 judges.
The Labor Superior Court has closely to 116,000 case files with 27 justices, end the TSE, the top of the electoral justice, has closely to 4,000 cases with 7 justices. Military justice is the one with a small amount of files, 15 justices ruled over 600 case files, this means that each justice ruled over less than 100 case files.
You could ask how is it possible to rule over 50,000 case files. Let me clarify that almost 80% of these 50,000 cases are repeat cases. And we have experience with information systems, which work as auxiliary tools for justices.
Information systems in the Brazilian Judiciary started in 1974, in electoral justice, in the Regional Electoral Court of Minas Gerais, where the totals were obtained through computers. I had the pleasure to preside over that case, a computer pioneer in 1974, because I was a Federal Justice in the State of Minas Gerais, and was part of the Electoral Regional Court. Later, in 1985-86 when the National Constituent Assembly was elected, the electoral justice organized the largest registry of the Continent. It registered 70 million voters.
During the 1994 elections, the general elections for President of the Republic, state governors, deputies, senators, in a universe greater than 100 million voters, the total of votes was successfully counted with the help of computers, and in 1995/1996, electronic voting makes its debut in Brazil. The voter casts his/her vote in the computer, a small machine created by the Brazilian electoral justice, with the help of technicians from many areas of expertise. We established the need, created the foundations, made the first public bidding in 1996, and already in 1996, almost one third of the Brazilian electorate cast a computerized vote, that third of the Brazilian electorate meant approximately 35 million voters.
In Brazil, we currently have 106 million of registered voters, and during the last election, the 1998 election, almost 90 million voters participated; of the 90 million voters, 60% cast a computerized vote. That same election evening, Brazilians knew the name of the Elected President and the elected governors who participated in the election.
Soon after information systems were introduced in the Judiciary, they were introduced in state and federal common justice, and in labor justice. I can tell you that these information systems have helped justices, and being specially useful for the parties, the attorneys , because each Court has its computer terminals; the attorney can quickly obtain the results of the cases, being able to find out its status, whether it is in the hands of the magistrate or the judge, or whether the ruling is being published. This has eased matters for the parties, reducing the need to request services from notary public offices or secretary offices.
These information systems are currently located in two systems. First, the actual Judicial system, second, is in the judicial field, because we not only have computerized the judicial service, but also the support systems for judges and attorneys; these are the laws, court case laws, all computerized, catalogued and available to the parties.
Summarizing, the following are the services provided by the Brazilian judicial information systems:
In Brazil we pretend to integrate all networks, the Federal Supreme Court integrated to the network of the High Court of Justice, of the Electoral High Court, of the Labor High Court, Of the Military High Court, and also with the regional Electoral Courts, the regional Federal Courts, the regional Labor Courts, and the Justice Courts of states who are State Supreme Courts for state common justice. At the same time we will have the possibility of learning about the decisions and jurisprudence of all these Courts.
I would like to learn about the ideas of Justice Carlos Matías, From my office I can
have access to all his decisions and this way computers will provide a service. This is why I believe it has already provided a service to justice, as a tool for the execution of justice, as an additional tool of the process.
If we talk about the first instance, we can, for example plan ahead via the computer, we can make the de facto distribution, the attorney presents the request at the secretary’s office of the corresponding Court, the computer makes the de facto distribution, designates an audience, issues the summons or letter of summons.
You can see how much human effort was saved with a simple computer operation, and this information is readily available at the Court’s terminal, and this is already happening at the Federal Supreme Court and some Higher Courts, available via Internet at Law offices.
Attorney will no longer need to leave their offices to go to Court, because they will have all the information they need right at their office.
I must conclude by telling you two words about our experience with the electoral vote. We have built a voting machine, meaning the hardware, we built and imagined the program, the software. Not too long ago, in Washington, the general director of the Foundation in charge of managing and preparing the elections in the United States, who also gives advice to countries worldwide, mentioned in a speech the Brazilian voting machine, a model I used to call "Tupiniquim", since its is truly Brazilian: a simple, inexpensive model. This voting machine reached the general director of this American foundation.
The keyboard is also in Braille, and the Blind will be able to vote. I am going to tell you what happened during the 1996 elections, something that moved me tremendously. In 1996, during the first elections we made with the voting machine, with a small Brazilian computer, just as I had finished casting my vote, in Belo Horizonte, my city of birth, a partially illiterate lady came looking for me, and told me that she had voted for the first time; I asked why she was voting for the first time, she told me, "I don’t know how to read or write and I got a form I needed to fill in, and I didn’t know where, but I know the numbers, because I work, I shop at the supermarket, I hand out change; I know about numbers. I pressed on my candidate’s number and his picture appeared on the screen. I was certain when I pressed the key, that I had voted for the candidate I wanted."
This, gentlemen, dear colleagues, legitimates the system of representative democracy we practice. The only possible form of democracy to be practiced in the last years of the Century. Thank you very much.
Chairman
In today’s program session, there was scheduled a presentation by Justice Héctor Romero Parducci, Chief Justice of the Supreme Court of the Republic of Ecuador, on "Judicial Discipline". Justice Romero has sent as note to the Chief Justice of the Venezuelan Court, where he says: " As I offered during our telephone conversation
held yesterday afternoon, I am sending you the contents of what was going to be my personal presentation in the First Plenary Session of the II Ibero-American Summit of Chief Justices of Supreme Courts and Tribunals of Justice, to take place in that city. I also ratify that I am truly sorry , that the Ecuadorian Delegation will be unable to attend to such an important event, due to the motives known by us all, which I resumed during our telephone conversation. In any event, I am extremely grateful for the invitation extended, and send my best wishes for the success of this II Summit."
Chairman
Next: Justice Julio Salvador Nazareno, Chief Justice of The Supreme Court of Justice of the Nation of Argentina, will have the floor, and will speak about "Citizen Participation in Judicial Processes."
Justice Julio Salvador Nazareno
Madam Chief Justice of the Supreme Court of Venezuela, Justice Cecilia Sosa Gómez. Mr. Chairman of the discussion group. Gentlemen Chief Justices of Supreme Courts and Tribunals of Justice. Gentlemen Magistrates attending as observers. Magistrates in general.
I will try to make a brief presentation on a rather broad and current topic, maybe running the risk of not being too clear, but since my written presentation has already been handed out, my thoughts will be more clearly expressed on it. First of all, I want to give thanks for this invitation made by the organizing authorities of the II Ibero-American Summit of Chief Justices of Supreme Courts and Tribunals of Justice, to attend this meeting, as well as for their kindness in assigning me this presentation on "Citizen Participation in Judicial Processes."
Despite the presence in this meeting of outstanding and well recognized specialized jurists, I need to stress the importance of the questions chosen as study, consideration and debate matter, since they belong to the area directly linked to the improvement and consolidation of our Republican régime of government, such as the establishment of the appropriate institutions and procedures, to enable the Judiciary to effectively come through for the citizens, with the specific function, which, allow me to stress this, our national constitutions bestow upon it.
Looking for the best way to present different alternatives for the direct or mediate channeling of citizen participation in the framework of the judicial processes, there will be an approach to different institutes which coincide with the common purpose of trying a fruitful nearness of the often forgotten inhabitants of our lands, in the institutional function of giving everyone what they deserve, of making justice in each one of the daily affairs, which, multiplied by several thousands, are present in the development of our communities. The expansion of active legitimization in the matter of obscure interests, the acknowledgement of the amicus curia figure, the furthering of the use of non-adversary means for conflict resolution, the operation in the area of its capacity, of the Judiciary Council, and the trial by Jury, are tools which have as immediate finality, the achievement of the outlined high objectives.
Due to its marked importance for the citizenry’s participation in judicial processes, priority treatment should be afforded the issue regarding the reformulation of historical concepts in connection with the individuals given legitimate authority to activate the jurisdiction of our courts in lawsuits against the State or against corporations producing goods and services, because the protection of the law is not limited solely to the individual injured in a direct and personal manner vis-a-vis his rights, but also includes a varied gamut of positions which the constitutions call "rights of collective consequence," which are those whose ownership is diffuse and corresponds to an organized group within society.
As in other latitudes, in the Argentine of the last few years, a clear expansive process of the framework of legitimacy has been developing, which tends to surpass the traditional liberal scheme of the rule of law, in which only one type of social interest acquired legal relevance, that is, the one that consisted precisely in the defense of the individualized circle of personal performance. But although it is true that the recognition of the rights of collective consequence and diffuse interests imply an important step forward, because the margins of expression of actual pluralism are broadened, it is likewise true that the recognition of the legitimacy of entities which are exponents of the collective interest present new and serious instrumentation problems that, given the remembered republican principle of division of powers, should be redirected with the greatest precision. In brief, the profound cultural and structural change produced by the broadening of the legitimacy base requires a new legal ordering, which can be contained and channeled in order to avoid the institutionally pernicious effect of the judges having the last word in matters in which the constitution clearly cedes the exclusive appreciation and decision to the political powers of the State.
This is one of the challenges of our times which we must seriously face, since judges neither administer nor legislate and must show self-restraint when the parties invite them, under the label of a jurisdictional case, to address matters regarding which they have no legal authority.
The inherent function of the judicial bodies is the judgment of conflicts where genuinely opposing parts confront each other, presenting a matter which the Constitution has not reserved for the exclusive scopes of the legislative and executive powers.
And one of these mechanisms, meant to channel the links between society and the State, when the latter exercises the judicial function, is the figure of amicus curiae, typical of judicial proceedings in Anglo-Saxon countries.
Although it is true that some go back to Roman law for its origins, its current propagation comes from common law countries. The Work.....Institutas stated that amicus curiae was the person who, in order to help the court, supplied information regarding essentially legal issues, in which the judicial entity manifested doubts or could be wrong, reminding it of precedents or doctrines which were applicable to correctly decide a complex case.
In those times of secular judges and limited propagation of the contributions of juridical science, the denomination of this institution (amicus curiae is literally the friend of the court) coincided with the function of legal assistance which this friend performed.
Since that time until now there have been structural changes in the society of the State, which altered, in an equally substantial manner, their interrelationships. The function of the amicus curiae likewise suffered modifications but, as usually happens, and not only among the Anglo Saxons, the institution changed but the name remained.
In principle, his condition of friend of one of the parties might continue, but this denomination would not be entirely correct either, because there might not be an exact coincidence between the interests of the party and those of the amicus curiae. Today, putting aside semantic differences, we can observe that the amicus curiae of our times, as he acts before North American courts, especially the Supreme Court, appears as a formidable mechanism meant to channel the relationships between society and the State, when the the latter exercises the function of judging.
It is a well known fact that constitutional courts, whatever their denomination, are responsible for defining essential aspects of the individual and social life of citizens; establishing the limits of expressions, the protection of honor and privacy, the scope of proprietary rights, and the freedom of association, of accepting or repudiating the death penalty, euthanasia and the voluntary interruption of pregnancies, of admitting the possibility of penalizing the possession of so-called soft drugs, of setting the scope of the powers of the State to arrest and interrogate people, and, consequently, of establishing whether or not there have been discriminatory norms, attitudes or behavior. These are the issues which the members of these constitutional courts must decide on a day-to-day basis.
The exercise of such power, which is only that of the traditional power of giving each one his due, necessarily has favorable or unfavorable repercussions, as the case may be, on the rights, aspirations and expectations of the numerous interest groups which exist in a pluralistic and democratic society.
It is logical to suppose that such groups will attempt to persuade the court, alleging juridically regarding the benefits of adopting the resolution which is most convenient to their interests. That is precisely where the amicus curiae of our time appears. And it is that lobby, which, arguing against validity or timeliness, the merit of the advantage of a law, has failed before Congress and the Executive and has the possibility of presenting himself before the court as amicus curiae to maintain juridical considerations in favor of his interests.
It is evident that exercising the right to petition as an indispensable element of the dialog between those who govern and those governed, has a double significance: on the one hand, it enables the citizen to present claims to the authorities; on the other, it allows the authorities to become aware of the viewpoint of the citizens of various social sectors regarding a given issue and to evaluate the magnitude of the effects of the decision it may adopt. In this regard, the presence of numerous organizations intervening as amicus curiae constitutes an extremely relevant point to appreciate the importance that the decision it adopts will have.
When acting before the court, the amicus curiae must argue juridically, indicating the issue which motivates his presence before the court, the norms which are at play and how they have been interpreted over time by the court. The intervention of the members of the court which must now act will be highlighted in these cases. The amicus curiae will indicate whether there are precedents in other judicial instances; he will refer to the solutions which have been adopted regarding the issue of comparative law and, similarly, will provide the criteria which doctrine has presented on the subject.
The amicus curiae should be explicit before the court regarding the interest he represents and will present the arguments on which he bases his position. He will conclude by suggesting to the court the solution which should be given to the case.
Acting in this way, the amicus curiae allows the court to take into account juridically consistent arguments which might not possibly have been considered by the adverse majority in the legislative chambers or by an executive confused by the results of a popularity survey.
The Inter-American Court of Human Rights, by applying Article 34, paragraph 1 of its Regulation, which confers the right to hear any person or organization which may contribute elements of judgment which are considered useful for the decision it must make, has admitted that the consent of the parties is not necessary with the presentation of allegations by the amicus curiae. Among many others, the cases of Velásquez, Rodríguez, and Rodríguez Cruz, have been decided in this manner.
We will now consider another institution which makes use of civic participation. I am going to refer to mediation and subsequently to the Judiciary Council. While observing which institutions, of the most diverse nature, can contribute to the objective of strengthening the active participation of our citizenry in the function of imparting justice, one cannot ignore or minimize the contribution of the use of nonadversarial methods for solving conflicts. I underline the singular importance of this mechanism, because after the intervention of mediators who do not functionally belong to the judiciary, a great number of citizens, who, in the case of Argentina must be lawyers, actively become involved in the solution of disputes, decentralizing from the State the judicial function, by contributing with their extremely useful intervention so that the conflicting parties will come to an agreement on their own regarding their conflicting interests.
One should not forget that all controversies resolved in this manner generate a favorable result of two diverse viewpoints. On the one hand, because the fortuitous litigant has been able to verify personally that the State is deeply concerned with implementing alternate means suitable for finding just solutions, thus reducing the sanctity of the judicial process as the only suitable tool. On the other, because all controversies solved in this way obviously imply a decrease in judicial tasks; consequently, the judges will have more time available both for a more profound study of contentious cases as well as to increase their knowledge by participating in legal courses.
In this regard, the statistics prepared in my country regarding mediation are extremely eloquent. With regard to labor matters, there is a compulsory reconciliation service prior to legal action. It was noted that of the total proceedings, 42% were settled by the parties, thus significantly decreasing the work of the labor courts.
Contrary to what could be expected, the tremendous success of this system is not limited to labor relations, where it might be expected that the employee’s need motivates a prompt solution to the conflict. In effect, in the federal, civil and commercial ambit in which matters of economic importance are treated, during 1998 there was a positive result of 35% of all proceedings, percentage which during the month of February of this year has gone up to 47%. By the same token, in the city of Buenos Aires, in cases in the civil and commercial ambit where mediations are obligatory, more than 65% of those initiated have not reached the court.
Lastly, it is important to point out a circumstance which is not expressly apparent from the aforementioned statistics but that shows the democratizing function of this institution. When comparing the current number of cases where mediation is requested, with that of previous years in which the court was involved, there is a notorious increase in requests for mediation, which shows that a great number of people who previously gave up their right in view of the heavy and costly legal machinery, now present their claims to seek redress when their rights have been violated, because an effective institutional channel has been opened allowing them to obtain, through active involvement, recognition of interests which, in the past, would have been left defenseless.
Other institutions to which I would like to refer briefly are the judiciary councils, which we mentioned this morning. At this time, we would like to view them as a participation channel for other groups which have also become incorporated into the judicial process. In our country, the judiciary council, as I already indicated, was incorporated into the constitutional reform of 1994.
I consider that they also constitute a useful tool for allowing the desired participation of citizens in the judicial function. In this case, I am referring only to the attribute of this body to select candidates for the bench. Since the judiciary councils were instituted, in the case of Argentina, participants include representatives from law schools, as well as legislators who have been elected by popular vote. The election of magistrates seems to be the fruit of a very transparent process in which, at least from a legal viewpoint, priority will be given to the value of the most suitable rather than to political advantage or partisan negotiation of a given appointment.
Beyond the fact that the results, not always beneficial, of a direct popular election of magistrates (as occurs in several states in the U.S.) are well known, if the judiciary council complies faithfully with the constitutional mandate and does not repeat the mistakes attributed to the derogated system, its intervention in this ambit should be received with approval, because it contributes to the citizenry controlling, through its representatives, the process of selecting magistrates. Also, since there are public contests based on objective criteria for evaluating backgrounds and competitive examinations, this allows for the incorporation of lawyers from outside the judicial structure into the judiciary, thus eliminating any type of suspicion which might exist in the citizenry with regard to corporate or class behavior which might conspire against the democratization of justice.
We have left for the end, within this broad topic of "Participation of citizens in the judicial process or in justice," the theme of "trials by jury." "Trials by jury" are, obviously, the maximum expression of the participation of citizens in judicial processes, since this involvement is related directly to the solution of conflicts. In this case, citizens participate in the sacred task of judging. This is a controversial topic which provokes discussions in my country, as well as in many parts of the world. Obviously, an in-depth study of "trials by jury" in the Republic of Argentina and into its evolution from post-Independence times to today, leads to confronting a situation which I do not hesitate to qualify as paradoxical because it is framed in such a coherent line of silences, dogmas and contradictions as few institutions in our law can exhibit.
From the viewpoint of the authors of the doctrine. It should be pointed out that the two most brilliant authorities on criminal law in the Republic of Argentina, professors of whom I had the honor of being a student at the University of Córdoba, Messrs. Vélez Maricón and Clairé Olmedo, did not believe, with total conviction, in trials by jury. They based their position on known arguments of constitutional hermeneutics, based on the tacit derogation of the text generated by the actual Constitution and noncompliance with the surety of capability exacted by Article 16 of the Supreme Law, of a cultural and sociological nature, such as the scarce educational level of the juries and the rootlessness of this institution in our cultural heritage, and on considering the results of their performance based on the influence it exerts on same, the resulting fallibility of the verdicts and the lack of sufficient judicial control on such decisions.
I do not wish to conclude this presentation without inviting us all to reflect on the political and juridical expediency of "trials by jury," since only if we arrive at an affirmative conclusion will we be able to begin to mobilize the institutional springs that will permit establishing a debate in public opinion, among juridical operators and public powers which will conclude with the sanctioning of the instruments necessary to put into motion this aged and forgotten institution, at least in the Republic of Argentina.
I reiterate that the starting point should be to demonstrate the usefulness of this judgmental system, because our societies are demanding the improvement of the judicial power, but not necessarily the implementation of this system, whose results are unknown and which has not been identified by the citizenry as a procedure which cannot be substituted as a guardian of its personal and social rights and guarantees.
I believe that in order to address the analysis I am proposing, it is extremely useful to take into consideration the phenomenon occurring in the United States with regard to "trial by jury." Abrahamson, an author on the compulsory reading list on the topic, who leans strongly towards a public prosecutor’s stance, holds in his work, "We the Jury, the Jury System and the Idea of Democracy," that although those who propound the abolition of the system are few, many others are in favor of following the English model of restricting the types of cases in which there should be a jury. The author adds that the violence which left thirty dead after the first "trial by jury" against the white policemen accused of beating the Afro-American Ronny King in 1991, is eloquent proof of the loss of faith in a jury.
On my part, and given that this work was written in 1994, I would add to the list of emblematic cases of controversial verdicts, that of O.J. Simpson declared not guilty by a jury composed in a majority by Afro-Americans, who deliberated only four hours despite the volume and complexity of the evidence of Lorena Bowie whose verdict seemed to respond to sociological guidelines of justice. The same could not be said for the adequateness with regard to legal norms.
Abrahamson gives us an illustration on several reasons which contributed in generating some skepticism in the North-American people about the institute. These are very interesting and we will examine them to take advantage from this experience and thus avoid falling into a situation directly opposite to the desired one. The first point this author highlights is that justice must be distant and waterproof to protect it from the pressure to do what is more popular. This is the raison d’etre of federal judges, why judges are nominated and not elected through electorate voting and their positions are for life.
The jury’s democratic perspective, adds the author, insists that today what is sought is popular justice, the community conscience. But justice is not always popular nor community conscience is always pure. Today juries tend to substitute the empire of the law by the empire of the people. I believe that this is exact as a remark of reality but not as a surmountable criticism, because if the appreciations of the juries in their condition of citizens are questioned, we are in essence postulating the abandonment of the system. History contains many questioned decisions. Socrates was accused of not believing in the State’s religion and of corrupting the young by teaching them not to recognize the republic’s gods and was sentenced to death by the Athenian Assembly, in the way that he so lucidly had foreseen in his defense allegation when knowing the orthodoxy of his time advised the citizens who were judging him: "do not be mad at me because I tell you truths, but there is no man who can leave safely with you or with any other people gathered in assembly if he nobly opposes the performance of much injustice." Yet, I must admit that the jury also gave guidance with its verdicts to North American settlers before the Crown judges, protected fugitive slaves of the southern states and abolitionists who helped them escape, protected communists against persecution during this century from Washington, in all and notwithstanding the defections mentioned, the jury repeatedly showed courage in protecting dissidents against existing orthodoxy at a certain time, which judges designated by the authorities would probably never have shown.
This proves that no other governmental institution can compete with the jury in placing the power so directly in the hands of citizens who overnight enact the drama of becoming heroes or villains. The proposal we should study which exceeds the range of our knowledge and which better concerns social psychology is whether this system allows juries to emit their verdicts based only on the evidence of the process, in view of the influence that massive media have today on public opinion. Gabriel García Márquez and Mario Vargas Llosa from the journalist point of view, and Justice Carlos Fai, prestigious dean minister of our Argentine Supreme Court in his book, "The Omnipotence of the Press", have described in detail the effects that the bombarding of information has on society. They substantially agree that real reality does not exist any longer. It has been replaced by virtual reality, the one created by the publicity images of big audiovisual media. What is known as information label is something that in reality fulfills a function essentially opposed to that of informing about events happening around us because it annuls the real world of facts and objective sanctions substituting them with cloned versions which reach us through television screens, selected by the comments of the media professionals, replacing today what was formerly known as historic reality.
Faced with this situation, where a fact of public knowledge is disclosed by the media in early morning editions, stressing suspicion about the responsible parties right from the beginning. These are drastically accused by radio-and-ink district attorneys in the early afternoon and receive the most severe and irrevocable sentence: the television news in the early evening. The question finally is, What space for autonomy remains for the citizen to objectively judge the facts investigated in a judicial process?
I think that the eight months spent by the jury of the Simpson case secluded in a hotel are an eloquent sample of the means that must be used to mitigate, at least, the pernicious effects accounted for in detail.
On this basis of capturing the judgement of value about reality, it would not be daring to predict that the decisions that the jury would have taken in resonant cases occurred in the Republic of Argentina, would have recognized as a base the concurring position adopted by the media instead of approaching the proofs produced during the trial and the existing law.
To what has been said about the jury system, an aggregate which at present has been studied in depth to frightening limits should be added: the existing gap between the complexity of modern procedure and the intellectual qualification of juries. This is rarely understood in expert testimony, appraisals, in an anti-trust trial or in bad medical praxis, of disloyal competition, or vices of a mass-produced good. They are not familiar with the law either. Then, in order to understand the legal instructions given to the judge - which in a case I learned about between two tobacco companies amounted to 81 pages to examine 108 bodies of evidence - they must take a speed-course on the controversial matter. The hub of the solution of the controversial case does not go through the technical matters brought up but through the emotions, prejudice, and sympathy of the jury.
Lastly, it remains for us to verify what happens in the search of representative jurors because certain cases end up sinking the juror selection based on matters of demographic balance, giving the impression that justice precariously depends on race, sex, religion, or even the national origin of its members.
It is not unusual to find during the juror selection stage that the most important persons where the court holds its sessions are consultants in jury matters who supply almost scientific advice to lawyers in the manipulation of the jury, based on statistical studies, research, psychological profiles, aimed at predicting how the potential jurors would vote, based on certain indicators such as race, age, income, sex, social and civil status, personal background and even the automobile they drive.
As a final reflection on this paper, addressed to all participants and speakers at this transcendental meeting, I invite you to consider one last important aspect of my view that substantially points at strengthening the judicial branch as depository of the guarantees of the inhabitants.
As citizens and as human beings we know that one way or the other we participate in the results that the judiciary generates. That society is demanding from a very critical position the role of justice, a profound change in the performance of the power of the State, that does not necessarily go through institutions, but that it essentially considers judges bastions who defend the citizens’ rights before the State and the powerful people, showing transparency in their behavior, independence in their decisions, and executive action in the performance of their functions. Therefore, we should very prudently consider whether the solution of implementing a jury system to enforce offences, would not be taken by our society as a solution on the easy side. A way of eluding institutional responsibilities today weighing on the Judiciary which, in order to avoid lack of prestige and not face the challenge to improve the system, ignores those functions it has been performing in Argentina since 1853 and transfers them, without any type of consensus, to the citizens and makes them take charge of a situation alien to them and which the Judiciary has been unable to solve.
In summary, this polyphase theme demands our compromise to approach it in depth, through an always fertile exchange of ideas, leaving aside a priori jury trial contribution to the consolidation and improvement of the democratic system would be a waiver of the main task which corresponds us men and women of the law. GERI warned about the consequences which could derive from similar attitudes: The fight for the law turns into a combat against it. And he added that the feeling of the law, abandoned by the power which had to protect it free and master of itself, then seeks the means to obtain the satisfaction denied it.
Our objective is that the demand we face today be exclusively channeled by the rule of law. Therefore the importance of this meeting which gives us the opportunity to reflect, exchange ideas, and improve the institutions to allow greater citizen participation in judicial processes. Thus, the inherent intelligence of their genuinely democratic instruments con contribute to overcome the fallacies nobody ignores in the administration of justice and the citizenry’s skepticism of the Judiciary. The importance of these instruments lies precisely in that they appear as means of active citizenry participation in the exercise of an essential State function.
Under the circumstance we must make our best effort to carry out one of the legacies declared by our constituents at the time of the national union: reinforce justice. Thank you.
Chairman
Justice Victor Raul Castillo, President of the Supreme Court of the Republic of Peru.
Justice Victor Raul Castillo
Honorable Chairman of the discussion group, presidents and representatives and delegates of the Ibero-American Supreme Courts, magistrates, ladies and gentlemen.
Above all, I would like to greet you all my country’s judges and state the importance we attach to this event which gathers all Court Supreme presidents which will undoubtedly originate a timely, speedy and true justice.
I am thankful for this opportunity to explain the Peruvian judicial organization towards a reform and there certainly are some positive points I would like to mention.
In all institutional reform processes the need to re-formulate both objectives and the pre-existing organizational design arises. Like Denis Abo warned, it means carrying out a set of actions which has the common goal of giving a new shape to the ideology, the strategies, and, above all, the organic structures which guide and rule or manage an institution.
It therefore means creating a new organization to serve the objectives and development of the reform, constituting at the same time its main support and promoting agent. In the specific case of the justice administration reform, this process of change needs to start from a very exhaustive and comprehensive verification to enable an objective and systematic analysis of the qualities, advantages, defects, benefits, and problems originated in the social service of justice by the organizational structure under which the ruling institution of the Judiciary operated.
Taking into account the above, what the Peruvian judicial reform is going through seems coherent. Its main trait appears to be a new jurisdictional or administrative functional organization chart very different from the organic model we knew before 1995 at competency, attribution, and competency levels. That model centered management and jurisdictional control functions exclusively on the Republic’s Judiciary and, above all, on the court in full session. A sort of general assembly of supreme magistrates who not only had to take care of their overloaded offices but also remained linked to administrative decision-making of little importance considering their rank and hierarchy, such as granting a labor license to a worker or civil servant.
That organization originated at the time huge procedural delays, serious operational conflicts, and plenty of management disorder. This not only affected the public image but also increased mistrust in the judicial branch.
It is understood that this situation had serious negative influences also in the lower bodies of the judiciary and different judicial districts.
The main objective of this paper is to explain the Peruvian judiciary’s new organic structure and the most significant achievements reached in the past three years through this innovative organizational design. It aims at developing an efficient and timely justice administration to guarantee the normal development of Peruvian society, characterized by a solidary and democratic institutional vocation.
Organization of the Judiciary in Peru. The organization and operation of the Peruvian State are divided among the Executive, Legislative and Judicial Branches and their competence is clearly established in the 1993 Constitution. The Judicial Branch is charged with administering justice. This task must be accomplished through hierarchical organs complying with the constitution and the laws.
Under the constitution, the judiciary is an autonomous and independent institution, integrated by jurisdictional organs that administer justice on behalf of the nation, and managing and ruling organs.
The jurisdictional organs are, the Supreme Court of Justice, the High Courts, the specialized courts, counselor peace judges, and peace judges. The Supreme Court is the highest court and its competence embraces the whole of the national territory. Its venue is in the capital and it is formed by the President of the Supreme Court, the Supreme Member, the chief of the judiciary’s control office, and eighteen supreme judges holding office. There are three jurisdictional areas; the civil court, the constitutional court, and the social court. The President is in charge of the Judiciary’s presidency of the Executive Commission and of the Judicial Coordination Council. The High Courts of Justice are based on the departments and cities indicated by the law. Their competence reaches only the geographical space assigned to each judicial district. They operate through penal, labor, family, public law, and contentious-administrative process courts. In general, these courts solve second and last instance processes known to them.
There are also High Courts under the Supreme Court specialized in judging drug traffic, terrorism, and criminal organization offences, and tax and customs frauds. The counselor justice’s courts are jurisdictional organs familiar with minor matters, and the competence of justice’s courts is limited to the nature of the issues and to the amount of the litigation. They mainly act as conciliatory agents.
The Executive Commission of the Judiciary. When the reform of the judiciary began on November 20, 1995, through Law No. 26546, governmental and management functions were conferred temporarily to the Executive Commission of the judiciary. The execution, coordination and supervision of the administrative activities were delegated to the Executive Secretariat, a technical body which also forms part of the members of the Executive Commission of the judiciary. When the Executive Commission of the judiciary assumed its functions, various provisions of the Organic Law were suspended so that the Commission could fully develop its programs and activities and thus achieve the proposed objectives.
The Executive Commission initially included the president of the constitutional law division, the president of the civil division, and the president of the criminal division of the Supreme Court, and an executive secretary. Subsequently, with Law No. 26695, dated December 3, 1996, the makeup of the Executive Commission was modified. It is now composed of the president of the Supreme Court who presides it, the president of the constitutional and social division, the president of the criminal division, and an executive secretary. The latter is also the head of the budget statement.
It should be mentioned that Law No. 26623, dated June 18, 1996, created the Judicial Coordination Council, a very important body whose mission it is to coordinate general policy, development and organization guidelines for all official institutions connected with justice administration issues. This is essential in a reform process in order to achieve an adequate interinstitutional relationship, so that the various entities can adapt in a coherent manner to the changes, and the entire system can attain simultaneous and standard development. This Coordination Council is headed by the president of the Supreme Court and also includes the president of the Executive Commission of the Public Ministry and the president of the National Judiciary Council.
According to the law, the Executive Commission of the Judiciary should conclude its reform activities on December 31, 2000. Among the main issues which have been addressed are the following: Delay in processing files; insufficient and inadequate infrastructure; almost total absence of information systems; low salaries; serious cases of corruption; absence of training programs, among others. To date, notable changes have been made which have propitiated and consolidated an effective and dynamic modernization of this power of the State. In this regard, the Executive Commission has promoted various programs, plans and strategies to make the integral restructuring and reorganization of the judicial system feasible. To this end, it has touched upon various topics which will be detailed below and which refer to the judiciary office, the jurisdictional career, and to achieving a new organic statute for the judiciary.
Ever since its creation, the Executive Commission, upon temporarily assuming the government and management functions of the judicial power, has dedicated itself to planning and conducting the various areas and stages which the process of reforming and modernizing justice should cover in a country with geographic and socioeconomic characteristics such as those of Peru. It must attempt to make justice efficient and effective, with honest, capable, and well paid judges, supported by modern technology, with an adequate infrastructure and with a clear and heart-felt vocation to serve the Peruvian people.
In addition, in order to improve actions taken with regard to functional misconduct, the Executive Commission currently hears, in second instance, the disciplinary measures applied to judges, superior and auxiliary members, and, if necessary, it may propose de measure of dismissal to the judiciary council. We should likewise point out that the judges in all instances have been actively participating in the reform of the judicial power. They have been forming various commissions charged with studying the issues and alternatives for improving the judiciary system. These commissions formed by judges have played a relevant role in deciding the measures to be applied for restructuring and rationalizing the judicial districts; in evaluating the procedural load of the divisions of the Supreme Court and in analyzing the ideal way for handling non-contentious processes or appeals for dismissal or complaints. Their cooperation in designing and implementing new dispatching models or corporate support modules for jurisdictional entities has also been decisive; in strictly selecting the member of the Bar who will conform the roster of attorneys eligible to be acting judges; in the technical compilation and coding of jurisprudence issued by the specialized divisions of the Supreme Court, and in coordinating the reform of the Control Office of the Judiciary.
As may be inferred, the Peruvian reform, thanks to the flexibility of its new organization chart, allows for an adequate decentralization of its projects and decisions, thus strengthening the integration and commitment of all the judges with its objectives and development.
Main Achievements of the Reform: Among the most significant achievements to date of the reform and modernization process of the judicial power, the following stand out: In the administrative area, there has been an adequate rationalization of existing personnel; the administration system of judiciary information was perfected; improvements were achieved in the notice issuing service, central recording of sentences, issuance of certificates, requisitions, expert appraisals, assessments, embargoes, bailments and guarantees, as well as control over impounded goods; the systems for controlling personal income and collections, rate, consignment, fine and civil redress were reformed. As for the jurisdictional area, it has been provided with adequate physical facilities for carrying out the legal activity of all the country’s judges. Furthermore, computer systems have been progressively implemented in the judicial offices so that their functions may be carried out in the quickest and most efficient manner. As has been pointed out, an important achievement of the reform is that it has conveniently separated the functions of the government and management of the institution, from the strictly jurisdictional functions of the judiciary. Consequently, judges may now dedicate themselves fully to the task of administering justice, and, consequently, their decisions will improve in timeliness and quality.
Another aspect which has been given priority treatment by the reform is that concerned with judiciary training. Multiple measures have been taken at this level, offering the judges numerous professional updating courses of a decentralized nature and at national level.
Computer and management courses have also been offered. For the purpose of evaluating and standardizing trends in case law, there have been full jurisdictional meetings in all specialties. Seminars on ethics and morals have also been included so that attendees might internalize the values of honesty and service vocation which guide the institution.
With regard to economic improvements, it has been possible to increase the amount of the judges’ remuneration, by way of a bonus for jurisdictional functions, financed by judiciary resources. This bonus is not included when calculating pension payments and is basically associated with the productivity factor. In order to geographically decentralize the rendering of the administration of justice, new judicial districts have been created in areas with high demographic density.
In order to detect and severely sanction corruption cases, the Control Office of the Judiciary has been strengthened and made more dynamic. Similarly, a frontal struggle against acts of corruption has been implemented through preventive measures and sanctions.
To reduce the heavy legal load of the jurisdictional entities, in all instances, temporary divisions were created in both superior courts and in the Supreme Court. Three temporary divisions were created in our Supreme Court: a civil division and two criminal divisions. The latter also hear, as a special final instance, tax, customs and illicit drug trade offenses. Furthermore, a national in-jail trial program for prisoners has been implemented. This has improved the rendering of this service and has rapidly relieved the congestion of proceedings with jailed convicts. Similarly, to ensure a timely reply to denouncements regarding persons under arrest, made by the public ministry, as well as to be able to carry out other legal proceedings which require the immediate intervention of the jurisdictional authority, especially with regard to events which occur at late hours, on weekends and holidays, a permanent criminal court was created which functions 24 hours a day all year long.
It should also be pointed out that to achieve greater effectiveness in complying with restrictive measures established by the criminal jurisdictional entities, against absent or contumacious defendants, process in reserve and arrest courts have been set up. These entities allow for defendants in these conditions to present themselves before the appropriate judicial authority, thus avoiding impunity and the prolonged accumulation of this type of cases.
Also, we have established itinerant courts. This innovation is of vital importance, because it allows judges and courts to travel periodically to locations far from the court’s headquarters. Pending cases may thus be solved in distant areas, avoiding having to send these files to the city courts, with the ensuing difficulties and elevated costs for those liable for trial.
Another novel aspect, which we cannot leave out, regarding the organizational aspect of the reform, is the progressive implementation of a new management and processing style of handling judicial matters in the divisions of the superior courts. It is based on an organizational concept of corporate modules, as regards both jurisdictional as well as administrative service. This measure has also been achieving high production of judicial decisions.
Lastly, in order to make justice accessible to marginal urban areas and less developed areas, basic justice modules have been designed and are being built. These are mini judicial complexes with courts, government attorney’s offices, experts in medical jurisprudence, free legal consulting offices, and reconciliation centers. Thus, it is possible to bring together in one place the various agents involved in administering justice, bringing legal services closer to low-income groups.
To finalize this presentation, I would like to reiterate before this honorable assembly, that the Executive Commission of the Peruvian Judiciary is dedicated to studying and implementing the organizational designs which are considered necessary and suitable to consolidate in our country a judiciary power with upright, independent and honest judges, with a vocation to serve, and who decide cases based on the constitution and laws, and, above all, with justice. A judiciary that will inspire confidence in the people and strengthen legal security in our society.
I would like to thank you Madam Chairman for the opportunity I have been afforded and to all, my thanks.
Chairman
The next step in the program is an exchange of ideas by the different participants. As it is somewhat late, we will shorten this period, but I nonetheless urge participants to try to be brief in their presentations. We will begin by giving the floor to María Naviera de Rodón, Deputy Justice of the Supreme Court of Puerto Rico.
Justice María Naviera de Rodón
I will only make a few comments regarding the presentation by the Chief Justice of the Supreme Court of Argentina.
We have had a jury-based institution for almost a century, was incorporated from North American common law, but only for very serious criminal cases. We do not use it in civil cases. This institution has functioned quite well and something interesting has occurred, which is that our legal system permits the accused to waive the right to a trial by jury, and when the case is either very complex or the accused has a certain probability of being condemned, the accused waives his right and prefer the court of law. Our system uses the oral proceeding so that it was relatively easy to adapt this modality.
I would like to tell you that your institution has problems. We can see this as it struggles parallely with the jury system on the Federal level, which is the limited jurisdiction where the federal statutes are applied. It is assumed that the foundation of the trial by jury is that the person be judged by his peers, by the community. And then we have the Federal Court system where the potential members of a jury must speak English and Spanish in order to be sworn in. In Puerto Rico, contrary to what the world generally believes, we are not completely bilingual. Our mother tongue or primary language is Spanish covering a large percentage of the population. Without statistics in hand, I would venture to say that about 75% of the population is not bilingual. Then the next question I would ask myself is what representation does the jury really have.
We have spoken of this with attorneys at the Federal Court and they inform me that they have a method, since many jurors in the Federal Court do not really understand English well enough to be able to follow the proceedings of a trial and to issue a fair opinion with respect to what is being judged in their presence.
In complex cases and there are often civil proceedings that are also extremely complex, do you know what they do? They instruct the witnesses to say that they do not speak English so that an interpreter will be called and then the jury hears the Spanish language version and can understand what is happening. I believe that each of your countries that intends to incorporate this concept must be very careful. It must be adopted in such a way that it will be effective and useful in your system, bearing in mind the very particular situations inherent to your individual systems.
Each year, many judges from Latin America visit us in Puerto Rico to see how the jury system works on our island and it is precisely in Spanish that it is the easiest for you to understand and appreciate. I would like to invite you to visit us to see how the jury concept functions before you adopt it so that you will see exactly what it entails in order to achieve appropriate results.
Chairman
Next Justice Jorge Leslie Bodes Torres, Head of the Criminal Court of the Supreme Court of Justice of Cuba.
Justice Jorge Leslie Bodes Torres
I would like to address the topic of citizen participation in judicial proceedings. Perhaps we have limited the question too much to the existence or not of a jury. I think the topic goes far beyond this consideration and that what we really wish to achieve is the participation of all citizens in the entire judicial process. This leads us to reflect a little and to search for formulas that are important, not only as my learned colleague stated because each accused must be tried by a jury of his peers, but also so that the people will feel that they are a part of the administration of justice and to impart to it administrative transparency. From all points of view the presence of citizens is very important so that the citizens will not perceive of the meting out of justice as something extraneous that has been assigned to certain persons or officials, but rather as a process in which they can also participate.
This can be done in a number of different ways. We have already spoken of a jury. I believe the Justice from Puerto Rico made some very keen comments that should be examined in the context of each specific society, each different country and their traditions. Once this is done you can look for a formula for citizen participation. For example, not only the jury system exists. We have spoken here of courts with juries of lay people and judges where the courts are established with the participation of citizens. There can even be mixed courts with a combination of professional judges and lay judges, which would incorporate citizen participation in the administration of justice. Of course, no formula is magic nor is it devoid of problems and difficulties. But I do think that we have to find a way to eliminate such difficulties and open a space in legal reform because this is one of the points of legal reform: to allow citizen participation in the administration of justice. This is the point I wanted to make. Thank you.
Chariman
Next Orlando Aguirre Gómez, Head of the Second Division of the Supreme Court of Justice of Costa Rica.
Justice Orlando Aguirre Gomez
I am going to refer to the subject of "The modifications of the judicial system" presented by the president of the Supreme Court of Peru. The situation of judicial reform is very similar in all our countries. The models and type of legislation we have used until now are not giving the results we all desire, since in almost all our countries the result is justice that is ineffective, delayed or simply inefficient.
I believe the reform of the judicial systems should be made in three areas, but based on reality, not simply formalities. First, selection and training of judges. At least in our country one of the weaknesses is that we do not have judges or professionals who have been trained to be judges; the universities produce generalist lawyers. This is the market from which we take our judges and put them in the courts to administer justice, with so many deficiencies that once I recall a judge who did not even know how to formulate a decision.
We have to change this selection system, build systems based on suitability, objectives in which no political or any other kind of interest participates. We have to set up judicial schools, not to give isolated courses or refresher courses in seminars, but schools committed to the training of judges; schools that take professionals and make judges out of them because the universities are never going to give us judges.
Second, we have to make a frontal attack on obsolete legislation. We have very slow legislation. In matters of procedure for example we are still tied to systems that do not include basis principles such as intermediation. We do not have methods that provide good solutions to problems, such as oral procedures. We have to move very quickly toward changes in our procedural systems, to streamline and simplify processes so that ordinary people have access to them.
Finally we need to review our management and administration models. The traditional concept of office is no longer fitted to modern needs, so we also need to tackle the modification of these structures. This is a very delicate area because it is not simply a matter of changing these traditional models of judges or courts as separate atoms, but also introducing information technology, and separate pure administration from the administration of justice.
I would like to explain in more detail what we are trying to do in Costa Rica, but I should not because it would be practically a conference. But I do want to tell you that the changes proposed by the new type of administrators, who come to tell us how to do the things, have to be heard with caution. In Costa Rica we had an experience I want to share with you. We made a mistake because we designed the changes without the participation of our judges, or civil servants. We tried to implant something that was innovative and good but it was not explained to the people who had to operate it. They had not taken part in the construction of the system, and so they did not feel any commitment to it. There was a great reaction, which at one point became a boycott. I wanted to share this experience with you so that you bear it in mind when you make these changes. Take the actors in the system into account and naturally also the users and lawyers. This is the only way we can get everyone who is involved to make a commitment and achieve success.
Chairman
Next: Justice Cecilia Sosa Gomez, President of the Supreme Court of Venezuela
Justice Cecilia Sosa Gómez
Three very brief points. First, I want to refer the presentation of Dr. Nazareno on the subject of participation linked to mediation. I believe this is a very transcendent point as alternative form of justice. Possibly the objective of seeking alternative systems is not necessarily to decongest the courts, although it would be an effect. I believe that in our legal tradition, anyone who has a dispute thinks first about taking it to the courts. If we set up mechanisms of mediation that permit – as the statistics indicate presented by the president of the Supreme Court of Argentina, Justice Nazareno -- I believe we would have an alternative system and a much broader sense of justice.
The second point has to do with an experience that we will start in Venezuela on July 1 when our new Organic Code of Criminal Procedure comes into effect. Our experience and studies resulted in the inclusion of three trial mechanisms in the Code classified by type of offense: offenses subject to sentences up to four years are tried by single judges; 4 to16 years by one judge and two lay people; over 16 years by jury, although for a few years trial is by jury for offenses over 20 years. Later we will show you something of our experience in this combination of alternatives.
Lastly I want to mention the area of information technology, which the vice president of the Supreme Court to Brazil spoke about. This is a passionate subject for many of us. Sometimes we feel a little remote because our assistants manage the area for us. But I want to tell you that a survey we did of all the Supreme Courts revealed that although not all judicial systems are computerized, at least at the level of Supreme Courts the medium is really very satisfactory. It provides contact between us in a network that satisfies our information needs at least at Continental or Ibero-American level.
I want to mention a point about budgets in the air. We all know that to establish a computerized information system requires a large budget. This is not always understood by our Congresses or parliaments, which have to approve the budget. Thank you
Chairman
The next Justice Bruno Otero, Member of the General Council of the Judiciary in Spain
Justice Bruno Otero
I would like to speak very briefly on two questions: one relative to information technology and the other on judicial organization. Information technology and information superhighways have to be established and function in two ways. First, for purely judicial information and information on judicial work which is the work of the judicial office. This is the office which the court clerk, officials and assistants consult, which handles the registration of cases, notices on procedural acts to the parties and other courts etc. This is external communication, which includes communication between judicial bodies.
In Spain, we have recently created some common services in an effort to rationalize the work of the courts and give judges more time to spend on their jurisdictional functions, leaving the more mechanical works such as notifying the parties etc. to the common service. This is giving a very good result, and has strengthened the figure of the judicial clerk.
In the other area of computerization, I want to emphasize the need for integration in relation to the documentation that all judges should have available. I refer to case law, legislation and comparative law. The ideal would be for all our countries to have computerized intercommunication through complex or simple information highways. This would be really marvelous, but as President Sosa said very well, this would be very expensive. The solution that I can offer you as collaboration from Spain is our documentation Center in San Sebastian, known as CENDOC, which is computerizing all basic Spanish legislation. I do not mean the legislation of the autonomous communities but the legislation of the Spanish state and all the case law of our courts, from the Supreme Court down, including the Constitutional Court, registers and notaries and the European Tribunal of Human Rights. The system is not yet working, but we have do have some CD-ROM that contain all this legislation, which are available.
On judicial organization, I am not going to enter into all the different systems. I think each country’s legislature has the duty to make a suit to measure according to each country’s circumstances in this very delicate area of judicial organization or the organization of the judiciary.
I sincerely believe that we have to have great caution and care in selecting the system, and I am not going to advocate any particular one. In Spain we have a Supreme Tribunal, which is the highest jurisdiction in ordinary legality. We have a Constitutional Tribunal that judges what we could consider generically political matters, and we have the General Council of the Judiciary, which we spoke about yesterday. Other countries have other systems.
What I want to emphasize is that whatever the system selected, countries should ensure that their judicial organization is horizontal, rather than vertical, so that the status of each of its jurisdictional or judicial members is identical. In other words, the justice of the peace in a small town has equal dignity when he is judging as the justice of the highest court with respect to independence. One is at the summit and the other is not, but in relation to judicial independence both judges have to be equally protected from attack on their independence. If the organization is not horizontal these attacks can come from the organization itself. No courts should be established that are hierarchically superior to other courts, with respect to the function and establishment of the different judicial remedies that have to exist in a system with guarantees. It should not be a top-down hierarchy or even -- I would dare to say – a disciplined top-down hierarchy in this area. Therefore I think the type of system adopted should be carefully considered. I propose the horizontal-type organization.
Uruguay
I would like to make some comments on some of the very varied and interesting subjects that have been discussed this morning. I wish to my state my disagreement with what Dr. Otero has just said on the organization of justice.
We believe that each country should find its own solution according to its traditions and the way in which its judiciary has operated. In Uruguay the judiciary, under the Constitution, is formed by all the judges, so all judges have equal institutional dignity, independence and capacity to decide matters based on their knowledge and understanding. However, for the purposes of the discipline they are subordinate to the Judiciary, to the Supreme Court, which can judge them for acts outside their judicial functions. Acts that have nothing to do with the exercise of the judicial function but relate to their conduct outside the system, or within their duties but not strictly related to the judicial part. This system has worked very satisfactorily for us. No judge in our country can say he has been persecuted by the Supreme Court; on the contrary, we have been concerned that all judges have proper guarantees and we have always had their support.
Another thing I want to say is that I totally support what the representative from Costa Rica said. Our countries are far apart, but we are very much synchronized. I want to affirm two things he said as a personal contribution of our country to the subjects we are discussing. First, the fact that only judges can teach judges. The judicial school must have the direct participation of judges in its control and management.
We managed a few days ago to establish that the director of the judicial school should be an active Judge of the Appeals Court. As a result, we are in complete agreement with the representative of Costa Rica.
Another point the Costa Rica representative made seems even more essential. It is that the reform projects produced by international consultants should have the participation of the judges and officials of the countries involved, otherwise they are not in tune with the reality of the service. They are like a shell that is very pretty outside, but has no life inside and no support from those who have to apply them.
It seems to me that with no previous agreement, the group of countries that have made or are making institutional reforms have been precursors in this area.
We cannot make reforms without consultation and the participation of all members of the judiciary, especially the judges themselves, but also officials, lawyers and everyone linked directly to the service.