80757 Governance Working paper series Access to Information Program Access to Information and Transparency in the Judiciary Álvaro Herrero Gaspar López Working Paper Access to Information and Transparency in the Judiciary A Guide to Good Practices from Latin America Álvaro Herrero Gaspar López 2010 Asociación por los Derechos Civiles (ADC) www.adc.org.ar This work was carried out with the support of the Access to Information program of the World Bank Institute (WBI), through the financial support of the Spanish Government Trust Fund. The analysis presented in this document does not reflect the official opinion of the World Bank or the Government of Spain, and is the sole responsibility of its authors. Contents Foreword....................................................................................................v 1. Executive Summary................................................................................1 ..........................................................................................3 2. Introduction. ...............7 3. Challenges in the Relationship between the Judiciary and Society. 4. Elements for a Conceptual Framework: Access to Public Information and Transparency....................................................................................9 4.1 Transparency and Judicial Independence............................................................... 9 4.2 Access to Public Information in the Judicial Branch. .............................................11 5. Access to Information and Transparency Practices Related to the Internal ... Operation and Administrative Aspects of the Judiciary............................. 13 5.1 Information on the Management of Public Funds (Budgets, Expenditures and Procurement). ..............................................................................................13 5.2 Information on the Appointment of Judges and Officials .....................................14 5.3 Information on assets and income disclosure statements.......................................... 16 5.4 Information on Meetings held by Senior Officials. ................................................19 .............................................................................................20 5.5 Access to Statistics. 6. Access to Information and Transparency Practices Related to ................................................. 23 Jurisdictional Functions of the Judiciary. 6.1 Publicity of Superior Justice Court Sentences. ......................................................23 6.2 Access to Court Files in Corruption Cases involving Public Officials. ....................24 6.3 Information on the Workings of Supreme Courts.................................................27 6.4 Transparency in Tribunal Sessions and Mechanisms to Stimulate Civil Society Participation...................................................................................27 6.4.1 Opening and Dissemination of Court Sessions...................................................... 28 6.4.2 Publicity of Hearings in Cases with Public Relevance . ........................................ 29 6.4.3 Public Hearings.................................................................................................... 29 iii iv Access to Information and Transparency in the Judiciary 6.4.4 Amicus curiae......................................................................................................... 30 6.4.5 Civil Society Initiatives to Monitor the Judiciary. .................................................. 31 7. Conclusions......................................................................................... 35 7.1 The Status of Reforms. .......................................................................................36 7.2 Opportunities.....................................................................................................36 8. Table/Summary................................................................................... 39 References................................................................................................ 41 Endnotes.................................................................................................. 45 Foreword For more than a decade, the Association for Civil of Latin America. Our interest in this subject Rights (Asociación por los Derechos Civiles, ADC) dates back several years. Since 2001, ADC has has been working actively to strengthen a le- been working actively on the promotion of re- gal and institutional culture that guarantees the forms intended to increase both the transparen- fundamental rights of individuals in accordance cy and the participation of civil society in the with Argentina’s National Constitution, inter- operation of the Judiciary. national human rights standards and democrat- To conduct research on the other two areas— ic values. Among other objectives, ADC aims to Supreme Audit Institutions and the Congress— monitor and support the reform of those insti- ADC invited two expert organizations that are tutions of democracy of which an improved op- regional leaders in these matters: Asociación Civ- eration enables a greater protection of citizen’s il por la Igualdad y la Justicia (ACIJ)—from Ar- rights, such as the Judiciary. gentina—and Fundación Pro Acceso—from Chile. At the beginning of 2008, ADC began The result of this project is reflected in this a project to document various good practic- series of three documents that are intended to es and experiences from different Latin Amer- serve as a reference for NGOs in the region, ican countries related to access to information government officials, members of academia, and and transparency of the State, more precisely, in- public policy experts. The papers were written novative experiences relating to three areas; the by Álvaro Herrero and Gaspar López (ADC); Judiciary, Congress and Supreme Audit Institu- Ezequiel Nino (ACIJ); and Tomás Vial Solar tions. This was all done thanks to the valuable (Fundación Pro Acceso).1 support of the Access to Information Program Lastly, we wish to thank the internal and of the World Bank Institute (WBI). external reviewers of the World Bank Institute In addition to coordinating the project, for their valuable comments on the three doc- ADC has been responsible for the particular re- uments. Any errors and omissions, however, are search on good practices in the judicial systems the sole responsibility of the authors. v 1 Executive Summary This document includes a compilation of practic- and expenses.There is also an analysis of the im- es intended to promote access to information and portance of providing access to judges’ assets and transparency in the various areas of operation of income disclosure statements, and the publica- the justice system, in particular the Judiciary, pro- tion of court statistics. Finally, we address an is- moting an operation that is more democratic and sue that has gained increased relevance in recent open to citizens. To this end, we approached the years: transparency and citizen participation in analysis by taking into account two dimensions: the process to appoint judges. access to information and transparency regarding Section 6 deals with information catego- the administrative functioning of the Judiciary, as ries related to the jurisdictional operation of the well as its jurisdictional functions. Judiciary. The publication of court sentences, Sections 3 and 4 include an introduction access to case files in corruption cases and dis- to the context in which the Judiciary operates ciplinary procedures of judicial officials are ex- in Latin America, identifying the most relevant amined, and innovative initiatives to foster the challenges it faces. Among other challenges, are participation of civil society are described. the lack of public trust in judicial institutions The categories examined in these last two and their distancing from society. The poten- sections are illustrated through a series of ex- tial for access to information and transparency periences that have been carried out in several reforms to help reverse that situation are high- countries in the region. These experiences were lighted. Also, emphasis is placed on the con- selected based on how well they meet publici- tribution of these reforms to foster both the ty and participation standards. It is important to independence and the accountability of the Ju- note that this document is not intended to pro- diciary, and thus enhance its role in a broader vide a comprehensive list of experiences or of governance context. the ways in which such experiences are put in Section 5 analyzes access to various catego- practice. The examples contained herein, how- ries of information related to the administrative ever, may potentially be replicated and adopted operation of the Judiciary. Among others, some by the Latin American states to make the op- of those highlighted include access to informa- eration of their Justice systems more open and tion and transparency in budget, procurement, transparent. 1 2 Introduction The Judiciary is one of the three branches of tion of court statistics would help citizens learn government. As such, it has functions that ex- about the true performance of the courts and at tend beyond the traditional role of “impar- the same time generate opportunities for aca- tial third party” in the resolution of conflicts. demia and NGOs to analyze the challenges and Its intervention in the political system could be to formulate reform proposals. In this case, a vir- profound, influencing—sometimes in a very so- tuous cycle is generated through the feedback phisticated manner—the link between the state between access to judicial information, moni- and citizens, as well as the relationships between toring and analysis by civil society, and account- the various social actors. Current research con- ability by the judicial institutions. ducted from a political science and law perspec- In turn, access to information and trans- tive has documented a broad participation of the parency reforms are also relevant since they can Judiciary in the process of public policy devel- contribute to the improved operation of the Ju- opment,2 in the recognition and protection of dicial Branch and hence foster inclusive gover- rights,3 and in controlling other state powers.4 nance. For example, the role of the Judiciary in In this context, and given the importance of the fight against corruption positions it as a key the Judiciary in political and institutional terms, player that can help improve the use of pub- transparency and access to information reforms lic resources and the quality of public policies, are relevant due to their potential impact on the and influence the way citizens perceive their administrative and jurisdictional operation of government institutions.7 At the same time, in the judicial bodies themselves.5 In other words, developing countries, judges are intervening the adoption by Judiciaries of transparency re- with increasing frequency to repair or mitigate forms could have a positive effect on their in- the failures of the State, improving the access stitutional capacity, increasing their legitimacy, to health, education, public services, and hous- their authority vis-à-vis other political players, ing rights for vulnerable groups.8 A more trans- and their relationships with citizens. parent Judiciary, with greater legitimacy, will be For example, in many countries in the re- better positioned to intervene in these matters. gion the courts are perceived by people to be It should also be taken into account that very slow. Some recent empirical studies, how- the Judiciary is a key actor for the consolida- ever, indicate that the actual average time for the tion of the Rule of Law. The importance of its processing of cases is not as long as suggested role is reflected in various indexes and method- by public perception surveys.6 The dissemina- ologies designed to assess the quality of public 3 4 Access to Information and Transparency in the Judiciary institutions and governance. For example,Trans- efforts to other areas, such as the Judicial Branch parency International’s National Integrity Sys- and other oversight agencies, has become evi- tem recognizes the Judiciary as one of its pillars. dent. Likewise, several diagnoses have identified the In parallel, the Judiciaries in the region justice system as a relevant player in matters of have been the target of numerous reform pro- governance. The Worldwide Governance Indi- grams. Since the early 1990s, international fi- cators include the Judiciary in the measurements nancial institutions, especially the World Bank for the category of “Rule of Law.”9 The Judicia- and the Inter-American Development Bank, ry is similarly relevant in worldwide assessments but also several international donor agencies of the quality of democracy undertaken by or- such as USAID, GTZ and UNDP, have pro- ganizations such as the Bertelsmann Foundation vided multiple credit lines and grants to mod- (Bertelsmann Transformation Index10). ernize the court systems. The objectives of the Moreover, the Global Integrity11 report reforms have been varied, but they have focused specifically examines the level of access to in- mainly in improving infrastructure, implement- formation and transparency of the Judicial ing management and planning systems, incor- Branch, using variables such as the selection of porating technology into judicial management, judges, the justification of decisions, financial introducing judicial training systems and foster- disclosure statements and access to the courts ing access to justice.12 The reforms related to by citizens.This is illustrative of the ever-grow- transparency and access to information, how- ing focus on access to public information and ever, have received scant attention. It could be transparency in the Judiciary in the field of said that Latin American countries have made governance reforms. progress on various fronts, introducing differ- The inclusion of the Judicial Branch both ent types of innovations in their judicial sys- in the construction of the above-mentioned in- tems, but only in a handful of cases have the dexes on Rule of Law, quality of democracy reforms been aimed at reversing the opacity of and transparency of public institutions, as well judicial institutions or putting in place arrange- as in the development of theoretical arguments ments which might lead to a better access to ju- on its growing incidence in democratic sys- dicial information. tems, demonstrates its major relevance in gover- In that context, the initiatives of a small nance assessments. In turn, principles such as the group of organizations that, for several years, transparency of judicial institutions, active par- have promoted a transparency agenda for Lat- ticipation in its processes and responsibility and in American judicial branches deserve recog- accountability of the Judiciary are key indicators nition. The Due Process of Law Foundation for the evaluation of democratic governance. (DPLF), for example, has conducted sever- In the last decade, several organizations in al research projects on transparency, access to Latin America have succeeded in driving re- public information and civil society participa- form processes geared to increase transparency tion in the region’s justice systems.13 Likewise, and citizen access to public information. These the Center for Justice Studies of the Americas efforts have had a widely varying impact de- (Centro de Estudios de Justicia de las Améri- pending on the case, and mainly focused on the cas, CEJA), an international agency operating Executive Branch, excluding other equally rele- within the structure of the Organization of vant players in the political system. It is only in American States (OAS) has supported numer- recent years that the need to extend the reform ous studies focusing on access to information as Introduction 5 Box 1.  Regional: Index of Web-based Access to Judicial Information Since 2004, the Centro de Estudios de Justicia de las Américas (CEJA) has been developing an annual report on the accessibility of judicial information on the Internet. The objective of this initiative is to analyze the progress, backsliding and current challenges to the justice systems in the countries of the Americas regarding the provision of different types of information via electronic means to citizens and the degree of transparency of the courts and public prosecutors’ offices. The index is developed by examining 25 indicators to evaluate judicial branches and 19 indicators in the case of public prosecutors. This CEJA project has made it possible to monitor the degree of progress in web-based access to information pro- vided by the judicial branches and public prosecution offices of the 34 member states of the Organization of American States (OAS), as well as to compare their evolution—and in some cases, devolution—over the past years. The indicators examined include aspects such as: • Existence of a website. • Publishing and updating of rulings and regulations. • Publishing of statistics on cases filed, resolved and pending. • Publishing of the Courts’ agenda. • Budget, salaries, background, assets and income, and disciplinary matters on relevant officials. • Publishing of bidding and procurement information for contracts. • Access and information regime. The 2007 report lists Costa Rica, Brazil, Chile, Canada and Argentina at the top of the ranking, as the countries with the largest quantity of information in the Web. At the other end are Belize, Guatemala, Surinam, Guyana and Haiti, countries that in some cases have no information at all in the Internet. For more information, see www.cejamericas.org. it related to the region’s justice systems. Starting These types of initiatives need to be contin- in 2004, CEJA has developed an annual index ued in order to more strongly establish the need of web-based accessibility to judicial informa- to promote access to information and transpar- tion.14 and has carried out comparative research ency reforms in the Judicial Branch. There are on access to public information in countries in valuable opportunities to make this issue more the region (See Box 1).15 Finally, several agen- prominent within the agenda of reform and cies such as the British Council and the For- modernization of the public sector that is pro- eign and Commonwealth Office (FCO) have moted by international organizations and coop- financed projects related to judicial transparen- erating agencies. The investment made to date cy and access to information in Latin America. by some donors, in addition to the efforts by All these initiatives have contributed to the de- various NGOs in the region, have generated a velopment of diagnosis, and the identification promising scenario. It is time to take a further of possible lines of work to incorporate this is- step and move ahead with comprehensive pol- sue into the agenda for state reform in the re- icy reforms in terms of transparency and access gion.16 to judicial information. 3 Challenges in the Relationship between the Judiciary and Society In Latin America there is an important divide consolidating the existing gap between the judi- between society and Justice, which, among oth- cial institutions and society, is caused by two key er reasons, is explained by the culture of secrecy factors. On the one hand, there is a severe defi- and opacity which has characterized the judi- cit in the media in terms of their capacity to re- cial branch, the population’s lack of knowledge port what is going on in the judicial system.19 regarding the operation of the administration In many cases, journalists and editors lack ade- of justice, and a marked interference from oth- quate training to cover the activity of the courts er political powers in the work of judges. As a and—an even more complex issue—to explain result, citizens in the region’s countries have an to society the legal issues that they address in increasing mistrust regarding the work of the an understandable and simple way. On the other Judiciary. According to Latinobarómetro da- hand, courts make little effort to communicate ta for 2007, only 31 percent of the respondents the cases they resolve in an appropriate man- in Latin America believed that in their coun- ner. This stems from the cultural heritage of the try the Judiciary worked “well” or “very well”. Latin American court systems, which have his- In turn, merely 30 percent stated they trusted torically considered it not appropriate to pro- the Judicial branch “a lot” or “somewhat”, while vide explanations regarding their rulings or give 75 percent of the population believed there was interviews to journalists. The old judicial adage unequal access to justice.17 This is compound- “judges speak but through their sentences” is a ed by the fact that a majority of Latin Ameri- true reflection of the prevailing situation. Faced can countries exhibit a poor performance in the with this diagnosis, the region’s NGOs have de- corruption perception surveys that are conduct- veloped some fledgling initiatives to address the ed by Transparency International on an annual problem. basis.18 In other words, the poor performance of In this context, the implementation of the Judiciary is added to the generalized corrup- transparency and access to information reforms tion problems in public administration, increas- attempts to contribute to reversing the gener- ing citizens’ lack of trust regarding the state’s real alized lack of trust in the judicial institutions, capacity to enforce the laws and punish crime. promoting a greater closeness between citizens The information that citizens receive on the and the justice system. For example, the imple- performance of the courts suffers from a double mentation of public hearings for the Supreme deficit of poor quality and—in some cases—high Court’s sessions, or the adoption of commu- complexity. This situation, which contributes to nication policies—be it by the media and civil 7 8 Access to Information and Transparency in the Judiciary society or by the Judiciary—to disseminate and judges themselves (assets and income disclosure explain the court’s decisions, are potentially statements) and to the operation of the courts promising measures to generate links and trust. (judicial statistics, budgetary information, pro- Likewise, initiatives geared towards improv- curement information) are intended to contrib- ing access to judicial information related to the ute in the same sense. 4 Elements for a Conceptual Framework: Access to Public Information and Transparency Before moving on to the analysis of the rela- one of the components in said concept. Anoth- tionship between transparency and court in- er concept frequently used in this document dependence, on the one hand, and access to and which is also an element of a transparen- information and the Judicial Branch, on the oth- cy policy is “publicity”. It should be understood er, it is necessary to provide a conceptual clari- as the various manifestations of a proactive pol- fication of the terms “transparency” and “access icy whereby relevant information is made avail- to public information.” able to the public. Transparency is a fundamental value for modern democracies. The concept of trans- 4.1 Transparency parency actually operates as a mechanism that should be the result of a way of governing, of and Judicial administering and managing by the state, which Independence allows for control and participation by citizens in public matters. In practice, this should include Transparency reform of judicial institutions may requests for access to public information (in the contribute, among other things, to generating strict sense), the state’s obligation to generate in- conditions for a greater judicial independence. formation and make it available to citizens in The open operation of justice systems, for ex- manners that allow for broad access (proactive ample, generates an increased flow of informa- transparency), and the empowerment of citizens tion from the Judiciary to society, enabling the to demand that the state comply with its obli- public to learn about its performance, become gations.20 involved in the processes and discussions relat- In this context, although access to public in- ed to cases of great institutional import, and formation—understood as citizens’ right to re- even participate in different ways (e.g. pub- quest information (and the state’s corresponding lic hearings, consultation processes, etc.). Thus, obligation to provide it)—constitutes an essen- the lifting of the veil of opacity that frequent- tial element of a transparency policy, it is only ly covers court activities, compounded with a 9 10 Access to Information and Transparency in the Judiciary greater social interest in the operation of the of interest groups, especially political parties. justice system generates a doubly positive ef- Likewise, it is important for guarantees of inde- fect. On the one hand, greater transparency and pendence to be maintained during the exercise the increased flow of information eliminate the of the judicial function, in particular at those margins for discretionality, corruption and ar- times where a greater interference of the polit- bitrariness in the behavior of the judicial sys- ical powers may be most evident: definition of tem and interest groups. On the other hand, promotions, payments and compensation, ap- they result in groups of citizens concerned with pointment of court authorities and so forth.24 the operation of the Judiciary, who intervene in However, it is important to clarify that ju- support of its work (constituency). Thus, judges dicial independence should not be understood find in society a source of legitimacy that con- as a value of its own, preventing an adequate fers onto them greater authority to make deci- oversight of the judges’ performance.25 Inde- sions that can have a high institutional impact, pendence should not be equated to isolation or run against the preference of powerful inter- or to the nonexistence of the duty of account- est groups. ing for the work a judge carries out. On the The previously mentioned Latinobaro- contrary, the notion of independence should metro statistics underline the low levels of trust be conceived as the precondition for impar- in the courts held by the population in Latin tiality in judicial behavior and as a guarantee America. Historically, Latin American Judicia- for better service to the public. Judges should ries have been the target of undue influence and not be exempt from the controls that are ap- pressure by the Executive Branch, political par- plied to other state institutions. Such indepen- ties and other powerful actors. At the same time, dence entails a responsibility26 that demands the recurrent interruptions in democracy gave adopting mechanisms for transparency and ac- rise to constant changes in the composition of countability in order to guarantee that judg- the courts, be it through purges, mass dismissals, es are held accountable for their decisions and/ or impeachments, which eroded the credibility or for the due use of the resources assigned to and legitimacy of judicial institutions.21 them.27 Thus, the starting point for account- The democratic wave of the 1980s and ability is responsibility on the part of officials 1990s has brought a shift to the region. Judi- based on information and justification of their ciaries have slowly initiated some reforms de- decisions (answerability), but it further implies signed to improve their performance, while the sanctioning public officials’ improper behavior government and civil society have promoted (enforcement).28 changes to optimize their relationship with the Such arrangements are not only useful to institutions of the political system.22 In light of evaluate the judges, control the Judiciary, detect this, in a democratic system it is fundamental errors and generate accountability, but they al- for judges to maintain their independence from so strengthen the Judiciary, grant it legitimacy other government branches, exercising their and, to a large extent, ensure the trust of citi- functions without any type of interference.23 zens. It is therefore important to understand ju- The measures to ensure such independence dicial transparency as a proactive opening, which need to be promoted from the initial stages of not only comprises enabling access to informa- the judicial function, beginning with the pro- tion, but also includes judges disseminating and cesses to select and appoint judges, which are publishing information related to the exercise of generally subject to the pressures and influence their functions.29 Elements for a Conceptual Framework: Access to Public Information and Transparency 11 Moreover, transparency policies have a pos- citizens, explained by a generalized perception itive impact on citizen’s access to justice. The that links the courts to corruption, political fa- exercise of access to public information, for ex- voritism, and inefficiency; which perception is ample, contributes to making the administration partly increased by the Judiciary’s opacity. of justice more accessible to citizens. This im- Hence, the adoption of policies that guar- proves the effectiveness of judicial intervention, antee access to information could not only be- in addition to strengthening the legitimacy of come an important tool to improve oversight the courts before citizens. and to fight corruption in the courts, but it could also contribute to opening up the Judicia- 4.2 Access to Public ry to citizens, with the aim of including the de- bates about the Judiciary in a broader context, Information in the providing information that enables society to Judicial Branch understand its operation, challenges, and limita- tions. In addition, citizen’s active participation in The right to access public information has be- substantial aspects of the workings of the justice come a key instrument, albeit not the only one, system has the potential to contribute to an im- to foster transparency in the state’s activities, proved efficiency of judicial institutions. Thus, promote accountability, and fight corruption. It the contribution of a policy of transparency and is also a valuable instrument to allow for a great- access to public information in terms of the lev- er involvement of citizens in the management el of trust and legitimacy of judges and others of public affairs. This right stems from the re- operating in the justice system in the eyes of so- publican system of government and its exercise ciety is fundamental. constitutes an essential tool to strengthen insti- To conclude, it should be noted that ac- tutions, since having adequate and timely in- cess to public information, as with any other formation is a key element in scrutinizing the right, is not absolute. Its limits are generally set authorities to whom government has been en- by two types of exemptions: a first group cor- trusted on behalf of the people.30 responding to cases in which the dissemination In a democratic society, the administration of information could cause damages to a pub- of justice cannot be isolated from the political lic interest that enjoys legal protection, such as and social contexts in which its operators act, or public security; and the second type of exemp- take place without effective arrangements for the tion is justified by the need to protect the pri- publicity both of its administrative operation and vacy of individuals. Each group of exemptions is its jurisdictional work. In that sense, a majority of based on a different rationale, and implies a dif- the information produced by the Judiciary, like ferent assessment with regards to its application that generated by the other government branch- to concrete cases.32 es, may be requested by any individual under the But beyond any restrictions that may be es- right to freely access public information, and to tablished, it is important that they meet cer- control the exercise of public powers in the per- tain parameters.33 In a special study on access formance of their functions.31 to information,34 the Rapporteur for Freedom In view of this, Judiciaries should adjust of Expression of the Inter-American Human their operation, fostering the right to public in- Rights Commission understood that the re- formation and transparency, especially given the strictions to this right should meet certain re- negative image of the Judicial Branch held by quirements. Firstly, they should be established by 12 Access to Information and Transparency in the Judiciary law. Secondly, they should be well founded, tem- perative public interest, and if there are several porary, reasonable, and proportional. Finally, the options to attain that objective, the one which ultimate purpose of the restrictions should be poses least restrictions to the protected right legitimate.35 should be selected. Therefore, state authorities The right of access to public information should be ruled by the principle of maximum has also been recognized by the Inter-American disclosure, on the assumption that all informa- Court of Human Rights as a fundamental hu- tion should be accessible, limited only by a re- man right, which became the first international stricted system of exemptions. In those cases, the tribunal to do so. In the case Claude Reyes,36 the state bears the burden of proving the legitimacy Court held that any restrictions of access to in- of the restriction. formation need to be based on satisfying an im- 5 Access to Information and Transparency Practices Related to the Internal Operation and Administrative Aspects of the Judiciary This section will examine categories of infor- 5.1 Information on the mation and tools (such as laws, assets and in- come disclosure statements, Internet sites, Management of procurement portals, etc.) related to the admin- Public Funds (Budgets, istrative operation of the Judiciary, using several Expenditures and Latin American experiences as a basis. Information regarding a justice system’s ad- Procurement) ministrative operation is that which is connected with the internal work of the various agencies In Latin America, Judiciaries have tradition- within that system. It should be eminently pub- ally been reluctant—or, at best, insufficiently lic, with limited exemptions founded generally proactive—regarding the dissemination of in- in the need to guarantee protection for sensi- formation related to their budget management, tive data, the publicity of which could affect the procurement and purchases, human resources right to privacy. (for example, personnel rosters), and some of the The practices and experiences described be- procurement transactions they carry out in the low focus on: information on the management course of exercising their administrative preroga- of public funds administered by the Judiciary; tives. In some cases, this situation has contributed information on the appointment of judges and to generating a perception of lack of transpar- other officials; information on assets and income ency among users and citizens. As in other state disclosure statements; information on meetings institutions, the lack of publicity and transpar- held by senior officials; and access to statistics. ency in procurement are factors that, together 13 14 Access to Information and Transparency in the Judiciary Box 2.  Chile: Public Procurement Law Chile’s Public Procurement Law (Law 19.886) became effective in 2004. The law includes the three gov- ernment branches and may be applied to the execution of support actions, implementation of works, public works concessions, the contracting of studies, and advisory and consulting services, among others. Furthermore, the law set up the Public Procurement Directorate, to manage the electronic procurement system “ChileCompra” (www.chilecompra.cl). All state agencies (including the Judiciary) have the obli- gation to publish announcements of intended purchases and service contracts in this portal. Likewise, starting in April 2007, all bidding processes related to the Judiciary are published and updated on its website, www.poderjudicial.cl. Finally, the law regulates conflicts of interest in government procurement, requiring that officials partici- pating in the system file an assets and income disclosure and interests statement. with others, create spaces for discretionality and Although budgetary information does at irregularities in the management of public funds, least have some level of disclosure since the bud- fostering opportunities for corruption. In other get is adopted by means of a law that is at least cases, the lack of disclosure with regard to the re- published in the official gazette, it is also impor- cruitment of personnel and the roster of the ex- tant to have information on the execution of isting staff has enabled the hiring of relatives of the budget through procurement records, which judges and officials, resulting in a perception of are generally scarcely available.Thus, it is impor- nepotism and excessive discretionality. tant for transparency to be promoted in the four The transparency and probity requirements budget phases—formulation, approval, execu- that are applied to the administrative management tion and evaluation.37 of any other state agency should be equally val- The transparency of procurement and con- id for the administrative work and management tracting processes is highly relevant when it of the Judiciary and, in that sense, the possibility comes to the prevention of corrupt practices. of accessing public information on budgets, pro- Corruption is not simply limited to incidents curement and expenses should make it possible to of bribery or undue interference in the con- control the efficiency of its management. text of a court ruling, since the manipulation Box 3.  Guatemala: Information on Procurement Processes Guatemala’s Judicial body publishes information on procurement processes on its website (www.oj.gob. gt). This includes updated information on direct purchases, public auctions, competitive bids, and ex- pressions of interest. Likewise, the site www.guatecompras.gt displays the statistics, with the number of transactions conducted by the Judicial Branch in the last four years. They are broken down into current bids, bids in the process of evaluation, bids awarded, annulled, and declared deserted. There is also information on the barring of suppliers and complaints from the procurement system users. Finally, the website allows users to subscribe to a bulletin that reports on public procurement in the Judiciary. Transparency Practices Related to Administrative Aspects of the Judiciary 15 Box 4.  Mexico: Budget Information Pursuant to section 7 of the Federal Transparency and Access to Government Public Information Law,† Mexico’s Supreme Court of Justice publishes in the “Transparency” section of its website all the informa- tion regarding budget execution over the last five years. It includes information on budget allocations, increases and reductions, the portion of the budget that has been executed, and that part still pending execution. This information is broken down according to the various budget items, which make up the sections: personal services, materials and supplies; general services; fixed and real assets; public works; financial investments; grants; pensions and retirement benefits; and other expenses. See www.scjn.gob. mx/PortalSCJN/Transparencia. † Section 7: “With the exception of the reserved or confidential information considered by this Law, the parties under the law shall make available to the public and update, in accordance with the Regulations and guidelines issued by the Institute or the equivalent instance to which Section 61 refers, among others, the following informa- tion: IX. Information on the budget allocated, as well as the reports on its execution, in the terms established by the National Budget. In the case of the Federal Executive, said information will be provided with regard to each agency and entity by the Finance and Public Credit Secretariat, which shall also report on the economic situation, public finances and public debts, according to the terms established in the budget.” of a court’s funds, nepotism in the recruitment use of clearly subjective criteria for the selec- of staff, and irregularities in the procurement of tion of candidates to cover judicial vacancies has goods and services, among others, also consti- created an increased perception among citizens tute instances of corruption. of a lack of court independence. At best, there It is therefore fundamental to have this type exists a perception that many judges are liable of information frequently updated and readily ac- to receive pressure or improper requests from cessible. In some countries, for example, it is pub- those who supported them in their respective lished on the Judiciary’s website, while in others appointment processes. it is published on a website especially devoted to In this context, the arrangements to appoint making public opportunities for procurement and judges are intimately related to the principle of contracting with the various government branch- judicial independence. The use of transparent es. Beyond the mechanisms that are used to make and open processes contributes to keeping judg- the right of accessing this type of information ef- es isolated from undue external influences that fective (such as electronic portals or information may be exerted by the other branches of gov- bulletins), what is important is for the information ernment or from various interest groups. Like- to be available to the general public in an acces- wise, transparency helps in selecting candidates sible format and with a low level of complexity. that meet the requirements and qualifications in professional standing, technical experience, and 5.2. Information on the a commitment to uphold democratic values and political, economic and social rights. Appointment of Even though there are no uniform mecha- Judges and Officials nisms for the selection of judges,38 comparative experience shows that increased transparency in The process used to appoint judges has long the process, the possibility of citizen participa- been identified as a defining piece in the rela- tion, and the prior preparation of a profile for tionship between politics and the Judiciary. The the position are key elements that foster judicial growing interference of political actors and the independence.39 16 Access to Information and Transparency in the Judiciary Box 5.  Argentina: Transparency and participation in judge appointment arrangements In 2002, in the midst of a deep institutional crisis in Argentina, the Supreme Court of Justice was severely questioned—both by political actors and citizens—because of its irregular performance over the previous decade during President Carlos Menem’s administration. At that time, the Court had been expanded, with the number of Justices increasing from five to nine (it is worthwhile noting that Article 99 in the Argentine Constitution grants the President of the Republic powers to appoint the members of the Supreme Court of Justice). Shortly after taking office in 2003, President Néstor Kirchner asked Congress to impeach the President of the Supreme Court and several of its members. At the same time, through Decree 222/03, he imple- mented a series of measures that restricted his powers to appoint new Supreme Court justices. The reforms implemented by President Kirchner may be divided into three groups. First, he limited his dis- cretionality in the selection of candidates to fill vacancies in the Court; provided for diversity, in gender, specialization and regional affiliation; and made it mandatory for candidates to fulfill objective guidelines regarding qualifications. Secondly, he defined a series of requirements linked to nominations, such as: a) the establishment of time limits to cover the vacancies in the Court; b) the obligation of publicly disclosing the background of the candidates; and c) a greater ethical scrutiny of the candidates (requir- ing a statement of financial disclosure, professional, commercial, and taxpaying background). Finally, an opportunity for participation was introduced, allowing citizens to provide their input and opinions regarding the proposed candidates. Subsequently, Decree 588/03 extended the application of the above rules to the appointments of the National Attorney General and National Public Defender (Ombusdman), and for the appointment of judges to head the lower federal courts. In line with the reforms implemented by the Executive, the Senate reformed its rules to improve the process whereby it approves judicial appointments. Mainly, they established that: a) hearings should be held during these processes with public participation; b) civil society involvement in the process should be promoted; c) once the hearings are completed, the Appointments Committee is required to issue an opinion; and d) senators’ individual decisions are disclosed through nominal voting. The enforcement of these changes in the appointment of new judges caused a major impact, which was most evident in the case of the National Supreme Court. It resulted in an improved image of the Court vis-à-vis society, granting it greater legitimacy derived from the broad consensus on the appointed can- didates. Additionally, the changes contributed to consolidating the Court’s institutional strength, giving its members more authority and independence. This was reflected in decisions that were often divergent from the interests of the Executive, breaking with the general trend of agreement with the Executive that had characterized the body when it was formed by judges appointed through the previous procedure. Finally, it may be noted that several provinces echoed these reforms and modified their own procedures to appoint judges to their higher courts, replicating to a greater or lesser extent the evolution of the national justice system. It is important that appointments be mer- dards and the profile of the judges required. it-based, result from public competition, and The assignment of scores must be made pursu- satisfy requirements for technical qualifica- ant to objective evaluation guidelines. Adddi- tions. The selection criteria need to be clear tionally, it is important for the appointment and widely advertised, so that there is an un- process to be widely disseminated at all stag- equivocal understanding of the selection stan- es, from the call for candidates, up through the Transparency Practices Related to Administrative Aspects of the Judiciary 17 final selection of the candidate, and new tech- branches. Their application generates greater nologies should be used allowing for imme- transparency in appointment processes, thus in- diate and free access to information about the vesting the new judges with greater legitimacy process. Furthermore, there should be broad for the performance of their duties as a result of dissemination (through the media, official ga- public participation, social consensus and quali- zette, and the Internet) of the list of applicants fications review.40 and their backgrounds. The responsibility for implementing the Finally, it is fundamental for these processes reforms described here falls to various actors, to be open to the participation of civil society depending on the respective institutional ar- groups, including the professional associations rangements. In general, the rules for the selec- related to judicial activities, so that they may tion of judges are included in the Constitutions, provide opinions on the merits of the candi- which are difficult to modify because of the ma- dates. A greater involvement by civil society jorities required. However, the bodies respon- in the judge appointment process enables the sible for the nomination and appointment of scrutiny of citizens. judges can easily self-limit their powers and thus Although these guidelines cannot ful- generate instances of participation and improve ly guarantee the independence of the courts or transparency. The example below regarding the eliminate corrupt practices, they partly reduce Argentine case poses some interesting and sim- the politicization of appointments, as well as the ple ideas on the subject. co-opting of the Judiciary by other government Box 6.  Colombia: Participation in the appointment of judges to the Constitutional Tribunal The Constitutional Tribunal is the senior constitutional law court in Colombia. It has nine members who serve for eight years and cannot be reelected. In early 2009, six of the current justices will have completed their term. Each of the six new members will be selected by the National Senate, from a list of three candidates submitted by Colombia’s President, the Supreme Court of Justice and the State Council. Given the impact that the Constitutional Tribunal has had in recent years, a group of Colombian private organizations created Elección Visible (Visible Election), as a citizen oversight coalition to provide monitor- ing and social oversight for the process of selecting the new justices. Their main objective is to demand from the nominators and elector that the eighteen candidates which form the six three-member slates have the best qualities, probity, and independence in exercising judgment; that political agreements play no role in their selection; that there be no filler candidates and that they are all the best possible candidates to fill their positions. Using dynamic resources on their website, the coalition provides citizens with information on the process to select the judges, the importance of the Constitutional Tribunal and the profile and background of the new candidates, among other issues. Elección Visible will play a role both at the stage of identification and nomination of candidates by the President, the Supreme Court of Justice and the State Council as well as in the phase of election of the candidates by the Senate. Within the framework of the project, the signing of “ethics covenants” with the nominating agencies has been promoted, in order to ensure transparency in the process of nomination of the candidates and enable society to participate. The Supreme Court, for example, agreed to adopt the transparency measures proposed by the coalition. For more information, see www.eleccionvisible.com. 18 Access to Information and Transparency in the Judiciary 5.3 Information on countries in Latin America. In some cases, the scandals reached such magnitude that they in- assets and income volved the removal and even imprisonment of disclosure statements presidents, such as in the cases of Collor de Mel- lo (Brazil), Fujimori (Peru) and Menem (Argen- Over the last two decades, the growing num- tina). In that context, some states, international ber of illicit acts committed by officials in the agencies, NGOs, and international financial insti- new democratic governments has affected many tutions conceived initiatives to fight corruption. Box 7.  Argentina: Access to Judges’ Financial Disclosure Statements through the Public Ethics Law Argentina passed the Public Ethics Law (No. 25.188) in 1999, regulating the exercise of public office. In the Argentine system it is possible to access data such as personal assets by viewing publicly available financial disclosure statements, and in this way also learn the income of public officials. The Public Ethics Law is applicable to all state officials but for several years the Supreme Court considered that it did not apply to the members of the Judiciary. In 2000, the Court issued Ruling 1/2000, excluding the enforce- ment of the Public Ethics Law from the area of the National Judicial Branch. It was only in 2005—by means of resolution 562/05—that the Judicial Council decided to enforce the law with the members of the National Judiciary. That same year, the Supreme Court issued Ruling 30/05, adopting the resolution of the Judicial Council. Nonetheless, access to the financial disclosure statements filed by judges remained extremely difficult, since the rules were not enforced. Finally, in 2007, the Judicial Council regulated the Public Ethics Law (Resolution 734/07), establishing by rule the disclosure of income and asset disclosure statements filed by members of the Judiciary. According to the existing regulations, those interested in learning about the assets of judges are required to apply to the chair of the Judicial Council and will gain access to them, with no further proceedings required. The new resolution removed the existing restrictions, which established that the request needed first to be considered by the judge whose assets where being reviewed and it was then decided whether to accept or reject viewing applications in light of any objections raised by the filer. It is now provided that “any individual […] will be able to consult and obtain copy of the Public Annex of the Comprehensive Financial Disclosure Statement before the Chair of the National Judicial Council. Applications must be answered in a period of no more than ten business days, without possibility for extension.” The ruling adds that “once the applicant has made the inquiry, the Chair of the National Judicial Council will inform the judge or official that an application regarding their statement has been processed, also revealing the identity of the applicant.” Furthermore, once a year the Council is required to produce a list of the officials and judges required to file financial disclosure statements; publish an updated list of those who have filed their statement or failed to do so; and keep records of the applications for access to assets and income information that have been received. Finally, a list of the information in the statements that would be exempted from dis- closure was considered, but it was decided to include this data as part of a reserved annex, because it is considered “sensitive data.” Among this sensitive data are the names and surnames of spouses, partners, or minor dependent children, including their relationship and occupation; the names and surnames of the creditors or debtors in the section referring to the detail of debts and credits; the name of the bank or financial institution in which they hold deposits; the numbers of checking accounts, savings accounts, safe deposit boxes, and credit cards and their extensions; their income tax returns for any extra salary income they receive or personal assets not incorporated in the economic process; the detailed location of properties and information of registration or identification of registrable fixed assets. Transparency Practices Related to Administrative Aspects of the Judiciary 19 Some of these initiatives involved developing Nevertheless, in spite of the different cri- treaties to adopt strict ethics and transparency teria in existence, it is accepted that certain standards (for example, the Inter-American Con- items are essential in these declarations. Among vention against Corruption), creating govern- them, income derived from professional activ- ment agencies specializing in corruption issues, ities; business investments; real property owned or citizen oversight of government procurement. by officials and members of their families; fixed In recent years, one of the most widely used assets; banking information (bank names and tools has been requiring public officials to file account numbers; debts); and gifts or servic- assets and income disclosure statements, some- es received free of charge in excess of a cer- thing which emerged as a prominent ethical tain value.42 Likewise, it is fundamental for the issue in the fight against corruption. The goal information contained in the statements to be of these statements is to control the undue ac- kept updated and readily available. It is impor- cumulation of assets and thus prevent crimes tant to establish as a minimum requirement the such as illicit enrichment. While in principle obligation to file a financial disclosure state- the requirement for assets and income disclo- ment at the start of the term in office and an- sure targeted the members of the Executive and other at the end, updating the information on Legislative branches, it was later extended to the an annual basis. Said obligation should be man- members of the Judiciary. dated by law, although there is no reason why The implementation of preventive tools, judges and judicial officials could not make such as the assets and income disclosure state- their financial disclosure statements public on ments, supplemented with the exercise of the a voluntary basis. right to access public information, allows for Although the obligation to file financial dis- oversight of the behavior of the members of closure statements is commonly required by law, all government branches, including the Judi- nothing prevents Judiciaries from issuing their ciary. The main purpose of this type of tool is own rules in this regard. Making use of their to detect and prevent illicit enrichment, as well administrative, self-governing powers, Supreme as potential conflicts of interest for individuals Courts and Judicial Councils can establish re- who hold public office. quirements for the members of the Judiciary re- Internationally, there are two fundamen- lated to the disclosure of their assets. tal instruments that establish the need to im- plement such prevention mechanisms: the 5.4 Information on above-mentioned Inter-American Convention Against Corruption and the United Nations Meetings held by Convention Against Corruption. Although Senior Officials many countries have implemented such mech- anisms, comparative law lacks a precise rule to Generally, the region’s governments have not establish the items that need to be included in adopted measures intended to guarantee access financial disclosure statements. However, it is to information from meetings held by senior of- possible to assert that these mechanisms should ficials. If we examine the majority of laws that maintain a balance between financial transpar- regulate access to information, in terms of com- ency and the right to access to information, on parative law, we can see that almost all guarantee the one hand, and the security and personal pri- access to the results of processes, but not much vacy of judges, on the other.41 more than that. This means that generally access 20 Access to Information and Transparency in the Judiciary is allowed to the information and/or statistics on Transparency Law that applies to the public ad- which the ultimate decision or result is based. ministration and the Judiciary, but in order to This means it is not possible to learn about the gain real access to this information it is necessary how or the why of certain decisions—who met, to contact the officials in charge of this issue.43 to what end and under what circumstances. Al- lowing access to information on the issues that 5.5 Access to Statistics are dealt with in such cases is an essential fac- tor in the transparency of meetings, which could One of the most important ways to assess the have institutional relevance and deserve to be work of a court is by using statistical informa- known by society. tion on its operation. Such information makes For this reason, it is important to have spe- it possible to analyze performance, identify cific information available on the meeting: site, achievements, detect problems and, eventual- date and time, reason for the meeting, partici- ly, design strategies to solve them. For example, pants, and issues to be addressed. It is also essen- learning about a tribunal’s caseload, the average tial to later gain access to information on the time to process cases and the rate of confirma- issues that were discussed, the positions held, tion of its sentences makes it possible to evalu- agreements, and conclusions. This information ate the back-up in the courts and the quality of can be readily disseminated through the Internet their decisions. It is therefore indispensable to or information bulletins. The obligation to dis- have some basic information on court perfor- close these aspects can be established by means of mance, such as, for example, data on the number a law by Congress that deals with issues of trans- of new cases, cases pending and completed dur- parency in all government branches, but also by ing a certain period; the duration of cases; and means of resolutions from the Supreme Courts the number of sentences per subject. or Judicial Councils themselves, who have broad In that context, the Judiciaries have the du- powers to issue these types of measures. ty of generating statistical information and mak- It is to be noted that there is a lack of regu- ing it available to citizens. This will not only lations with regard to these practices (including contribute to improved transparency of justice in the sphere of the Executive), and a conse- systems but will also give rise to an interaction quent absence of information. In spite of this, between the courts and civil society, since there two cases related to this issue bear mentioning; are numerous organizations that can help in an- those of Argentina and Peru. In the first, Reso- alyzing the performance of the courts, and it al- lution 7/2004 by the Argentine Supreme Court lows citizens to learn about the operation and states that the hearings and meetings with judg- limitations in the work of judges. It also makes es should always be held in the presence of the it possible to have reliable information to as- two parties involved to provide transparency to sess such systems, helping to detect the exist- the proceedings; and Resolution 36/2003 of ing problems and to develop potential solutions. the same court establishes that when examin- Such statistical data is also essential for the ing cases that deal with matters of institution- Judiciary itself, to be able to carry out an ap- al import, the date on which the matter will be propriate planning of their work and investment addressed by the court has to be established and of resources. Judicial statistics serve, for exam- made public. In the case of Peru, there has been ple, as a way to detect the geographical distri- progress in terms of the publicity surrounding bution of the demand for judicial services, and official meetings, as a result of the passing of the shifts in that demand, thereby allowing for ju- Transparency Practices Related to Administrative Aspects of the Judiciary 21 Box 8.  Costa Rica: Annual and Quarterly Statistical Reports Currently, Costa Rica’s Judiciary publishes statistics on the work of the courts on its website. This informa- tion is later compiled in an Annual Statistical Report. This publication reports quantitative information on the work flow in all of the country’s judicial and Pub- lic Ministry offices and is organized to analyze developments in three areas: the Superior Instance, the Criminal Area, and the Non-Criminal Area. In addition, there is also an assessment of Judicial Manage- ment Indicators for the various sectors, with the purpose of conducting a technical assessment of the Judiciary’s management performance. They include: • Inputs, staffing and degree of use; • Level of litigation and case load; • Production and productivity; • Duration and delays; • Quality of Service. In addition to the Annual Report, the Judiciary issues quarterly documents with relevant data to maintain an updated level of information on the statistical trends present in judicial offices, and in anticipation of the publication of the Judicial Annual Report. dicial public policy decisions to be made that compile information, even if it is not complete address this situation. Unfortunately, not all Judi- or does not comprise all the courts in the coun- ciaries generate such information. In some cas- try. In countries with a federal structure, many es in which they do, it is not used for the above provincial Supreme Courts show no interest for purposes. In many countries, Supreme Courts this kind of data. 6 Access to Information and Transparency Practices Related to Jurisdictional Functions of the Judiciary This section analyzes practices related to access 6.1 Publicity of to information and transparency in the Judiciary in terms of its jurisdictional operation. It focus- Superior Justice es on the actual administration of justice, ad- Court Sentences dressing issues such as the publicity of sentences; access to court files in cases of corruption of As head of one of the three branches of gov- public officials; information on the operation of ernment, the decisions of the Supreme Court of Supreme Courts; transparency in the court’s ses- Justice transcend the cases at issue and affect the sions and mechanisms for civil society partici- institutional nature of a country in several funda- pation. mental ways. Superior courts resolve, on a daily Such practices are illustrated with expe- basis, matters related to the rights of individuals riences that show different institutional ar- or the obligations of the state. In that sense, their rangements for providing transparency in the decisions have a decisive influence in regulating operation of the courts and promoting citizen the way in which the protection of citizen rights participation. These experiences make use of is enforced. Additionally, the decisions made by mechanisms such as television channels and ra- such bodies are vitally important, since they set dio stations to broadcast court sessions, public guidelines for the operation of the lower courts. hearings, and civil society participation arrange- Hence, the jurisprudence set by Supreme Courts ments such as judicial observatories or Amicus has an “ordering” role that provides consistency curiae, among others. and certainty to the justice system. In this context, it is an indispensable re- quirement for superior courts to publish their 23 24 Access to Information and Transparency in the Judiciary Box 9.   Mexico: Publication of Sentences in the Website The Federal Law on Transparency and Access to Public Governmental Information (Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental, LFTAIPG) requires sentences handed down by the Judiciary to be published. The jurisprudence coming out of the Court’s various chambers is published on the website (www.scjn.gob.mx/PortalSCJN) as well as in the Judicial Weekly Gazette (Semanario Judicial.) This is updated information readily available through its Coordination Unit for the Compilation and Systematization of Decisions. Furthermore, the Supreme Court publishes CDs and DVDs for public distribution containing a compendium of decisions, organized by period, in addition to the updated website postings of relevant cases.† † DPLF 2007a decisions, thus making them readily accessible journalists and editors lack the necessary train- to citizens in general, law professionals and low- ing to explain to society, in a simple and under- er courts. It is surprising that there are still coun- standable manner, legal issues that are dealt with tries where the national or provincial supreme by the courts. Even so, there are experiences in courts fail to publish their rulings, and that they the region (and outside of it) that suggest possi- only become known to the parties in a case.This ble lines of action to remedy this situation. failure not only affects the principle of public- ity that rules the democratic functioning of in- stitutions, but also detracts from the legitimacy 6.2 Access to Court and efficiency of the court’s performance, since Files in Corruption its work does not become known by society or Cases involving the lower courts in the justice system.44 Furthermore, the publicity of sentences as- Public Officials sists in citizen oversight (mainly through the media, civil society organizations, academia, and One of the major obstacles in the fight against other parties interested in the workings of jus- corruption in Latin American countries is the tice) of the operation of the courts,45 recurrent failure by the Judiciary to successful- As previously indicated, one problem in the ly conclude criminal investigations and punish region is the lack of an adequate coverage of the offenders.46 This situation, which affects the re- Judicial Branch issues, particularly sentences, by gion in a relatively consistent manner, has var- the media. Given the importance of the Judicia- ious causes: chronic inefficiency of the justice ry’s rulings, and in light of the broad lack of trust systems, political interference with the Judiciary, by society in the work of the courts, it is neces- lack of training to investigate complex crimes, sary for journalists to address this issue. absence of leadership by judges, and opacity in However, as already mentioned, this prob- court proceedings. This last element, the lack of lem has two well-differentiated roots that are transparency in judicial activity, can be mitigated related to one another. Judicial branches lack through concrete measures that allow for access communication policies and specialized officers to judicial investigations or case files. to deal with communications and press relations, Currently, judges do not provide NGOs or nor has the media made adequate efforts to cover journalists with access to trial information in subjects that are technical in nature. Frequently, corruption investigations. The reasons cited are Access to Information and Transparency Practices Related to Jurisdictional Functions of the Judiciary 25 Box 10.  Experiences Developed by Civil Society Argentina: “Court Rulings Within Citizens Reach” Since 2006, Asociación por los Derechos Civiles (ADC) has prepared an annual supplement regarding the most prominent Supreme Court rulings that is published by over twenty national and regional newspapers, with an average total run of 700,000 issues. The main objective is to familiarize readers with the operation of the Supreme Court and learn about the impact of its decisions on citizen rights. This initiative, spon- sored by Argentina’s Association of Press Entities (ADEPA), also contains an editorial on the performance of the Supreme Court in that year, and graphics on the issues resolved, major data regarding the court, and how its members vote. For more information, see www.adc.org.ar. United States: Coverage of Court Cases The prominent work of journalist Linda Greenhouse, from The New York Times, is one of the best examples of a good coverage of a Supreme Court. Recently retired, for many years Greenhouse wrote in-depth articles detailing the relevant and controversial aspects of the issues before the Court. It should be noted that her work was made easier by the fact that at the beginning of every year, the U.S. Supreme Court announces the list of cases it will examine during the period, which allows for study and analysis of the issues beforehand. Her notes not only covered the political and constitutional angles of the cases, but also the human stories behind each of them. Her work was supplemented by the excellent use of images and graphics that contributed not only to capturing the attention of readers, but to explaining in a simple way issues such as the position of each judge regarding the legal and ideological controversies behind the cases, or how the thinking of the Court had evolved over time. Regional: Justice and the Media The relationship between the Judicial Branch and the media is a phenomenon that in recent years has received growing attention in many Latin American countries. The failure of judges to communicate their decisions, especially in cases that are complex or have a major public impact, is compounded by the lack of capacity among much of the media to cover judicial issues. This combination of deficits affects the legitimacy of the Judicial Branch and the citizen perception of the justice system. In Peru, for example, the Association of Judges for Justice and Democracy and the Peruvian Press Council supported a proj- ect designed to establish communication channels between the justice system and journalists, enabling the media to understand how the Judiciary operates, but also opening up spaces for judges to better understand the work of the media. For more information see www.justiciaviva.org.pe. In Argentina, similar initiatives were started which involved NGOs focused on the justice sector and journalists, and as well as various Judiciaries. Poder Ciudadano, FORES, CIPPEC and ADC have each developed different programs of action oriented toward improving the relationship of the media with the Judiciary. These activities include conducting research, developing manuals on the Judicial Branch for journalists, and organizing discussion workshops. In 2007, the Argentine Journalists Forum (Foro de Periodismo Argentino, FOPEA) signed an agreement with the National Supreme Court to improve citizen’s access to judicial information. The agreement includes developing joint training activities and seminars to analyze the journalistic and communications issues involved in disseminating the work of the courts. For more information, see www.poderciudadano.org, www.foresjusticia.org.ar, www.cippec.org, www. adc.org.ar and www.fopea.org. diverse and in practice they seriously hinder cit- ally conducted with little or no participation of izen scrutiny of the most important corruption non-state actors. In other words, the procedures cases. This impediment needs to be weighed in are lead by judges, prosecutors and, in some cases, light of the important delays experienced in agencies specializing in corruption issues. Proce- court proceedings. Such investigations are usu- dural rules in Latin America usually prohibit the 26 Access to Information and Transparency in the Judiciary intervention of journalists, NGOs, and academ- In this context, Supreme Courts need to ic centers, arguing that they lack any standing disseminate information related to their juris- to play a role in the court proceedings, despite dictional activity. Because they are a tribunal of the existence of a clear public interest related composed of multiple judges, for example, they not only to the right of access to information but need to make available to the public information also to a citizen’s right to demand probity from related to the circulation of case files. It is worth not- their officials and representatives. ing that when a case reaches the Court, and until This situation reveals the need to set in mo- a sentence is handed down, the case file circu- tion alternative oversight mechanisms driven by lates through the offices of each of the members civil society and others. Such initiatives need to of the tribunal so that they may examine the cir- seek to gain access to the court files where cor- cumstances of the case and prepare a draft opin- ruption crimes are investigated and, having ob- ion. Through its website, the Argentine Supreme tained access to the case files, ensure an ongoing Court reports on which judge has the case file. intervention in the proceedings to provide ad- This provides transparency with regard to the cir- ditional oversight regarding the progress of the culation of case files and avoids unjustified delays. investigations. It may be noted that any involve- In Costa Rica, the Supreme Court has ment of NGOs and journalists in court investiga- launched a transparency program that in- tions should not interfere with the investigations, cludes the Internet posting of the minutes of or substitute for the role of judges or prosecutors the Court Plenary and the Superior Coun- during the process. On the contrary, the purpose cil, as well as information on the disciplinary pro- of such intervention is to contribute to greater cedures against judges and officials.47 The Supreme transparency and, indirectly, reduce the discre- Court of the Province of Buenos Aires pub- tionality with which the investigations of crimes lishes not only the sentences but also the ad- of corruption are managed.This is because some- ministrative resolutions and decisions that are times such cases can reach a state of paralysis due issued in the plenary agreements of the tribu- to the inaction of those within the justice system. nal using its web-based enquiry system (JUBA). Likewise, the IT system that the Court uses to 6.3 Information on handle cases makes it possible to learn about the order in which the judges have voted in all the Workings of the cases and which judge is processing the cas- Supreme Courts es. Unfortunately, the latter information is not accessible to the public. By virtue of their jurisdictional position above national or provincial judiciaries, the work of Supreme Courts holds greater weight than that 6.4 Transparency in of lower courts. Their precedents, for example, Tribunal Sessions serve to order jurisprudence for the remaining and Mechanisms courts and set standards that have to be respect- ed by all the instances of the judicial system. For to Stimulate Civil that reason, Supreme Courts have to lead in pro- Society Participation moting transparency and citizen participation, setting guidelines for their own practice that are One of the historical problems of Latin Ameri- extensively applicable to the remaining tribunals. can Judiciaries has been their isolation with re- Access to Information and Transparency Practices Related to Jurisdictional Functions of the Judiciary 27 Box 11.  Argentina: Participation of NGOs in Corruption Cases Over the last fifteen years, the Argentine courts have received hundreds of complaints linked to acts of corruption by public officials of various administrations. Still, very few have ended with convictions for those involved. This has contributed to a sense among citizens that there is an unspoken impunity that protects those who get rich in government at the expense of taxpayers. In that context, the ineffective- ness—and in some cases, connivance—of the Judiciary in resolving such crimes has led to a loss of trust by citizens in in judicial institutions. In the face of the above scenario, the Civil Association for Equality and Justice (Asociación Civil por la Igualdad y la Justicia, ACIJ) and the Center for Research and Prevention of Economic Crime (Centro de Investigación y Prevención contra la Criminalidad Económica, CIPCE) launched an initiative designed to gain access to judicial investigations of corruption of national government officials being processed by the Federal Courts of the City of Buenos Aires, where around 80 percent of these types of cases are concentrated. First, they conducted a study of a sample of fifty corruption cases. The preliminary results were alarming: the study found that the average duration of a corruption investigation is fourteen years, counted from the date in which the complaint is filed until its conclusion. Of even greater concern, it was also detected that only a few cases reached the final phase of oral trial, which demonstrates the limited effectiveness of the justice system to handle corruption investigations. Secondly, ACIJ and CIPCE tried to gain access to the case files of investigations into corruption crimes, since one of the main problems is that courts systematically deny journalists and NGOs access to such information. The purpose of gaining access to the court files is twofold. On the one hand, the objective is to establish jurisprudence that recognizes such a right for NGOs and journalists. In the event these practices cannot be reverted by means of simple requests to the court authorities, one available resource is strategic litigation on access to information. This needs to be carried out by NGOs and the media. On the other hand, having obtained access to the case files, the intention is to gather and analyze all relevant information in order to identify the structural failures by the Judiciary and oversight agencies in carrying out investigations of corruption cases. Simply knowing that the investigations take on average fourteen years is an indicator of the existence of delays, training problems, bottlenecks, and/or other structural problems that prevent their satisfactory processing. Although the project is still being executed, it has already achieved some promising results. Recently, the Second Division of the National Criminal and Correctional Federal Appellate Court decided to accept the requests for access to files made by ACIJ and CIPCE, based on the provisions of the international treaties signed by the Republic of Argentina. In effect, the American Convention on Human Rights establishes the publicity of the whole criminal process as a rule, and the United Nations and Inter-American Conven- tions against Corruption, in turn, stipulate that civil society organizations should be ensured an active role in the fight against corruption. This precedent is a valuable first step towards NGOs and journalists gaining effective access to information in cases of investigations of corruption. For more information, see www.acij.org.ar and www.ceppas.org/cipce. spect to the other sectors of society. As already the justice systems need to address the challeng- indicated, judges and tribunals usually operate es generated by swings in the region’s political behind closed doors, using very complex pro- dynamics. cesses in terms of procedure, and with limited In recent years, Latin American courts have communication to citizens on the develop- examined cases with great political, econom- ment of the investigations under way. This ar- ic and social impact, such as serious corruption rangement becomes of special concern when cases involving public officials, environmental 28 Access to Information and Transparency in the Judiciary pollution, the situation in prisons, human rights 6.4.1 Opening and Dissemination of violations, the limits to the state’s punitive power, Court Sessions and sexual and reproductive rights, among many others. The high degree of complexity of such The dissemination of the processes and discus- cases does not facilitate a rapprochement be- sions that take place before the courts is an im- tween the Judiciary and society. In this context, portant way to address the double challenge of the discussions prior to decisions and the vari- making the work of the courts known as well ous aspects connected with the decision-making as strengthening citizen trust in judicial institu- processes—and their later dissemination— tions. The use of tools to achieve that publicity, could greatly benefit from and be enriched by such as the recording of sessions, is beneficial for a greater openness and participation of society. the transparency and legitimacy of justice sys- What follows are a number of noteworthy ini- tems. While in some cases some rules and provi- tiatives that help to illustrate this assertion. sions regarding the publicity of judicial processes have been set by law,48 in general it is the higher Box 12.  Mexico: TV Channel on Judicial Issues In July 2006, the Judicial Branch in Mexico began broadcastings from the Judicial Channel, a TV signal that is broadcast by cable providers to the whole country. This innovative initiative emerged in response to requests made by several sectors of society in the National Consultation on a Comprehensive Reform of the Justice System of Mexico, carried out in 2004 and 2005. The findings of this consultation showed that the Federal Judiciary needed to find a better way to ensure transparency in its decisions. The creation of the channel was seen by the judicial authorities as a crucial way to reflect, in simple and understandable terms, what the Judiciary is, what it does, and how and to what end it performs its duties through the bodies that make it up. For this reason the Judicial Channel was created, with the objective of disseminating directly and without intermediary the daily workings of the various agencies that make up the Judiciary, such as the Supreme Court of Justice of the Federation, the Federal Judicial Council, Collegiate and Unitary Circuit Courts and the Electoral Tribunal of the Federation’s Judicial Branch, and thus contribute to the strengthening and renewal of a strong legal culture in the country. The Judicial Channel has diverse programming, including the live broadcast of the plenum of the Supreme Court Justices, some sessions of the Electoral Tribunal and relevant hearings that are held by various lower courts. There are also segments dedicated to Law schools, and programs with news and interviews related to the judicial profession. Among other major discussions, the Judicial Channel carried the debate on the constitutionality of the Federal Telecommunications (LFT) and Radio and Television Laws (LFRT). Box 13.  Brazil: Radio Station on Judicial Issues In 2004, the Federal Supreme Tribunal in Brazil created a radio station devoted exclusively to justice is- sues: Rádio Justiça. Its programming, which can also be received via satellite and the Internet, focuses on an in-depth analysis of current issues related to justice, and tries to avoid the superficial treatment that prevails in many mass media outlets. The broadcaster has correspondents in all the states of Brazil and its own team of researchers and journalists to develop content. For more information, see www. radiojustica.gov.br/home. Access to Information and Transparency Practices Related to Jurisdictional Functions of the Judiciary 29 Box 14.  Peru: TV Broadcasting of the Fujimori Trial The trial in Peru of President Alberto Fujimori for repeated human rights violations and charges of cor- ruption was broadcast on TV daily. Although the rooms had a restricted capacity (less than fifty seats), the TV broadcasting of the proceedings guaranteed compliance with the publicity principles enshrined in the Peruvian Code of Procedures. The hearings of human rights cases (La Cantuta, Barrios Altos and Sótanos del SIE) were transmitted in full on State and cable TV channels. Also, the Judiciary provided a room that had Internet-connected computers, telephone, fax, and sufficient technical facilities for TV channels and radio stations to get audio and images of the developments in the session, which operated as a Press Room. courts themselves that set the standards on trans- The press has a fundamental role to play parency and accessibility that govern the opera- in promoting the publicity of judicial process- tion of the various judicial bodies. es, because citizens do not typically go to the courts to attend a trial. Thus, access by the press 6.4.2 Publicity of Hearings in Cases to courtrooms is one way to guarantee the prin- with Public Relevance ciple of publicity of these processes. It is justi- fied not only from the point of view of citizens Another important practice refers to the public- in general (they can learn about the operation ity of the hearings held in trials with broad pub- of the courts in these cases by observing the Ju- lic relevance. diciary in action), but also in the interest of the Box 15.  Costa Rica: New Code of Penal Procedure The new Code of Penal Procedure in Costa Rica represents a model of penal procedure with accusatory characteristics. The applicable provisions establish, in principle, a reasonable regulation of the right of television coverage during a trial while also taking into account the protection of other interests that may be in conflict with coverage. Article 330 establishes the principle of publicity of the trial as the rule but also allows the total or partial holding of the trial behind closed doors in the event that a number of situations present themselves: a) when coverage directly affects the privacy or physical safety of any of the parties involved; b) when it seriously affects state security or the interests of justice; c) when it places in danger an official, private, commercial, or industrial secret, the undue disclosure of which is penalized; d) when contemplated in a specific rule; and e) when deposing an individual and the tribunal deems publicity inconvenient, particularly in the cases that involve of sex offenses or statements by minors. Once the cause for not making public the proceedings is no longer relevant, the rules expressly stipulate that the public will again be allowed to enter the room and the chairperson of the proceedings will briefly report what has transpired if the tribunal so decides it. What is innovative is the content of the following article, which regulates the relationship between the principle of publicity and the presence of the media in the courtroom: Art. 331-Participation of the Media: “To inform the public of the events in the courtroom, radio and television broadcasters may install in the courtroom equipment for recording, photography, radio broadcasting, filming or other mediums. The court will determine, in each case, the conditions under which such powers will be exercised. It will, however, through a well founded resolution, have the power to prohibit such installation when it hinders the development of the debate or affects any of the interests mentioned in the previous article.” If the offender, the victim or somebody who has to provide evidence expressly request that these com- panies not record their image and voice, the tribunal will uphold their rights. 30 Access to Information and Transparency in the Judiciary defendants (in terms of the fairness of the tri- where the general interest at stake is connected al) and of the state itself (the public is able to see with the public functions fulfilled by the defen- how state agencies operate under the assump- dant. This lower degree of protection provides tion of a violation of criminal law). for the free recording or dissemination of imag- Nevertheless, it is important to mention that es connected with the activity that has made the at times there may be tension between the pub- individual publicly known. The right to priva- licity principle and the protection of the right to cy of those who participate on a voluntary basis privacy of the individuals involved in the trial. in activities that place them in the public sphere Thus, we may find that there are cases in which becomes secondary in cases of general interest, publicity may reasonably be restricted, in order by virtue of the freedom to criticize officials based on to safeguard essential rights. This can be the case their actions in government, which is an aspect of when there are minors involved in the process, citizens’ freedom of expression.50 protected witnesses or whistle blowers, or when the case is related to sex offenses, among oth- 6.4.3 Public Hearings ers reasons.49 However, different court sentenc- es show that the protection of the privacy of Public hearings are an ideal mechanism for the high profile individuals is not admitted in cases involved parties and the judges to interact with Box 16.  The Use of Public Hearings in Cases of Great Institutional Relevance Mexico Between April and July 2008, Mexico’s Supreme Court of Justice conducted a series of six public hearings in the framework of a case that examined the constitutionality of abortion. In a process that stirred a major debate in Mexican society, the Court analyzed the reforms introduced in 2007 by the Federal District’s Legislative Assembly, allowing free access to abortion at the simple request of women in Mexico City during the first quarter of pregnancy. The hearings were held to hear the positions of the groups in favor and against the law. Both the hearings and the sessions of the Court were recorded and are available—not only in video format but also as transcripts and summaries—on a website set up by the Supreme Court to allow for an adequate monitoring of the case by citizens. Using this mechanism, the Court adequately informed society of the development of the process that was followed in order to resolve a sensitive issue in accordance with the constitution. (See http://informa.scjn.gob.mx). Argentina Based on a complaint filed by a group of neighbors affected by the serious pollution of the Matanza- Riachuelo river basin, the Argentine Supreme Court decided to become involved in a conflict that affects the life and health of over four million inhabitants. Given the case’s dimension and complexity—there are three levels of government involved in its solution and it comprises the population of the two most highly populated districts in the country—the Court resorted to public hearings to gather information from the various stakeholders, listen to the damaged parties, and analyze possible solutions. A series of meetings were held between 2006 and 2008, where, for example, the Court ordered the development of education and public information programs on the issue, and studies of the environmental impact produced by all the companies operating in the affected areas were required. Likewise, the Court requested that the 44 companies publish details regarding what substances they are discharging into the river, whether systems were in place for the treatment of pollutants, and whether the companies held insurance to guarantee the redress of potential damages. In all cases, the public and the media filled the courtroom. Finally, in July 2008, the Court handed down its sentence, ordering a long list of comprehensive measures to repair and prevent environmental damage. Access to Information and Transparency Practices Related to Jurisdictional Functions of the Judiciary 31 the purpose of defining the circumstances and tries they are a common practice (for example, the issues of a case, to delineate with clarity the Germany, the United States, Canada, South Af- central matter in the case to be resolved, to dis- rica and India). cuss the most relevant aspects, and to discover new perspectives on the analysis of the case. At 6.4.4 Amicus curiae the same time, the importance of hearings ex- tends beyond the parties in the case, and benefits Many mechanisms exist that give citizens the society at large. They help to further the under- opportunity to provide their views on an issue standing of the general public by demonstrat- being debated and its potential solution. One of ing the application of constitutional principles them is an Amicus curiae brief (also known as to concrete cases. Thus, holding hearings can friends of the court brief or third party presentation), help to offer the community a sort of civic les- consisting of the presentation of a document by son in the ongoing process of interpreting the a third party expert who is independent from Constitution and on its importance for citi- those involved in the case, and who provides the zens’ daily life.This can be a way of bringing the judge with an additional perspective on the is- higher courts closer to society and helping the sue at hand.This addition to the legal arguments public to learn and understand about the courts’ is a citizen participation mechanism that turns operation. the search for justice into a collective activity, Given the large number of cases before the not circumscribed to the judge’s decision and superior courts, they are not expected to hold the arguments by the lawyers for both parties. hearings for each of them. Rather, it is convenient Moreover, the opportunity to add these presen- to use hearings in a small number of strategical- tations to the case file operates as an oversight ly selected cases depending on the importance of check on the court itself, since it cannot over- the legal issue to be examined. In many coun- look—without appropriate explanation—the Box 17.  Argentina: The Use of Amicus Curiae by the Supreme Court This mechanism, which also exists in some superior courts of a number of Argentine provinces—such as, for example, the Superior Tribunal of the Autonomous City of Buenos Aires (Section 22, Law 402)—was accepted by the National Supreme Court in 2004. Basing its application on national and international rules, the Court underlined that “it considered appropriate that, in the pending cases before its court and in which matters of institutional import or public interest are examined, intervention should be authorized as Friends of the Court, to third parties that have a recognized competence on the issue examined and demonstrate an unequivocal interest in the final resolution of the case” (Resolution 28/2004). Given the great number of cases that, generally, are heard by the provincial higher courts, it should be noted that the use of the Amici is not recommended for all cases, but only in those that deal with ground- breaking issues because of their legal, social, economic, or political implications. Publicity and transparency in the operation of the courts is a fundamental requirement for the effectiveness of the concept of Amicus curiae. The Argentine Federal Court, for example, has, since 2006, published on its website the cases which, due to their constitutional significance, are eligible for a third party pre- sentation. This is a simply implemented system. In this case it was provided by means of a resolution (an administrative rule issued by the Court itself) although it should be noted that in other cases (for example, in the Argentine province of Río Negro) it has been implemented by a law passed in the local Legislature. 32 Access to Information and Transparency in the Judiciary arguments provided by community members, ance of an increased number of civil society or- individuals, or non-governmental organizations ganizations. These actors played a valuable role with a recognized record of knowledge in the in the transition to democratic regimes, the subject being addressed. promotion of Rule of Law and an account- This practice has a twofold positive impact. able government, subject to constitutional rules. It generates an obvious space for citizen partici- In these processes, the Judiciary acquired spe- pation, whether through NGOs, professional as- cial relevance due to the multiple challenges sociations, or academic institutions. In addition, countries were dealing with, such as trying hu- the opening up of the legal discussions (that usu- man rights violations, controlling public cor- ally take place inside courtrooms, behind closed ruption and, broadly, laying the ground for an doors) to the presentation of “external” argu- effective and sustainable Rule of Law. ments contributes decisively to increasing the In that context, civil society organizations transparency of judicial work. became increasingly interested in the operation Amicus curiae can be regulated in two ways, of the courts, given to their relation to political by courts or by the legislature. Courts can de- processes and the need to build Judiciaries capa- fine and initiate regulation through administra- ble of enforcing the rules of the game in the na- tive resolutions or court decisions. That is the scent democracies.51 Gradually, NGOs became case, for example, with the Argentine Supreme prominent players, not only to monitor, assess, Court. The use of the Amici can also be regulat- and scrutinize the performance of the Judicial ed by the Legislature, who can approve an ad- Branch, but also to contribute significantly with equate legal framework within which they can proposals for reform and modernization intend- operate. Some believe this is the best path, since ed to improve, among others, its transparency, the use of such tools implies nothing less than effectiveness and accessibility. the definition of rules of procedure before a The judicial observatories and citizen over- court, a role that is traditionally the purview of sight organizations are only a few of the numer- legislative branches. ous initiatives driven by civil society to monitor the operation of the justice system in the re- 6.4.5 Civil Society Initiatives to gion.52 The existence of long term projects de- Monitor the Judiciary signed to monitor the Judiciary has the double role of establishing a sort of ongoing “control” The transition to democracy that the coun- over its performance and generating specific in- tries in Latin America experienced beginning formation about it. For example, the monitor- in the 1980s was accompanied by the appear- ing of a supreme court makes it possible not Box 18.  Peru: Institutional Consortia The Legal Defense Institute and the Law School of The Catholic University of Peru joined efforts to create the Consortium Justicia Viva (Live Justice), an endeavor designed to monitor the situation of the Judiciary in order to be better equipped to advocate for the fundamental changes necessary to rehaul the justice system in this Andean country. The Consortium conducts a comprehensive monitoring of the operation of all the instances of the Judiciary, combining the research typical of academic institutions with proposals for political and institutional reforms. It also has a website that contains a large number of publications and documents analyzing the justice system. For more information, see www.justiciaviva.org.pe. Access to Information and Transparency Practices Related to Jurisdictional Functions of the Judiciary 33 Box 19.  Judicial Observatories Currently, judicial observatories are a tool designed and used by civil society to exercise oversight of the region’s Judiciaries. They operate under different formats and their composition is heterogeneous. There are observatories created by civil society groups, universities and research centers, or by a coalition of a number of these groups. They also differ in terms of objectives. While some are aimed at overseeing all the activities of the Judiciary, others only cover a specific judicial body. Their thematic coverage also var- ies, since they may focus on a concrete area—for example, family courts—or comprise all law specialties. Below is a brief summary of some of the initiatives in the region: • Constitutional Justice Observatory (Colombia): Promotes the dissemination of constitutional rights and the content of the sentences of Colombia’s Constitutional Court and the Inter-American Human Rights Court. Website: www.defensoria.org.co. • Observatory of the Judicial System (Uruguay): Focuses on children and adolescent justice issues. Web- site: http://observatoriojudicial.blogspot.com. • National Observatory of Democracy and Governance (Nicaragua): Monitors the justice administration system, among other areas. Website: www.observatorionacional.org.ni. • The Commission of Andean Jurists (Andean Region): Devoted to contributing to the defense of de- mocracy and human rights in the Andean countries. Website: www.cajpe.org.pe. only to assess the performance of the court but in particular (civil, criminal, family, etc.), or a also to learn about its decisions. This type of particular tribunal or jurisdictional body (for project can be carried out in connection with example, the Supreme Court of Justice or the the Judicial Branch in general, a type of court Defense Office). Box 20.  Peru: Social Audit of the Judiciary Since 2005, The Commission of Andean Jurists (Comisión Andina de Juristas, CAJ) is developing a So- cial Audit project in the nine main Supreme Courts of Justice in Peru, with the purpose of strengthening judicial independence and improving the legitimacy of the bodies responsible for the administration of justice. This project promotes an open and transparent justice system that includes citizens in its activities, especially in the processes of evaluation of judicial decisions. In addition, it hopes to generate a flow of consistent and ongoing information from the Judicial Branch towards citizens. The project was implemented by creating Justice System Social Audit Committees (Comités de Audi- toría Social al Sistema de Justicia, CASSJ), operated mainly by university students with the logistic and infrastructure support of public and private universities. The CASSJ were trained to make contact with judges willing to be audited by civil society (known as “transparent judges”), who, on a voluntary basis, agreed to disclose both personal information as well as information relating to professional performance in their jurisdiction. Currently, approximately 65 judges at various levels (first instance, appeals and superior court) have joined the project. Among the main outcomes of the project is the development of a databank containing information on the background of the judges who supported the initiative; publication on the Internet of copies of all the sentences and resolutions they have passed; and the creation of discussion forums on the most important issues of the justice system. For more information, see www.auditoriajudicial.org.pe. 34 Access to Information and Transparency in the Judiciary Collective action is an effective strategy, Many of these modes of activity constitute since coordination maximizes the potential of real social audits. These are processes where- the various individual actors. This mode of ac- by citizens influence the public administration, tion generates opportunities to join the efforts with the aim of achieving a more satisfactory of different organizations (such as universities, delivery of services according to their needs.53 NGOs, professional associations, and commu- In this case, the objective pursued is to improve nication media), building lasting cross-sectoral the quality of the administration of justice. The working partnerships. fundamental elements of these initiatives are cit- izen participation, the generation of specific in- formation, and transparency and accountability by the institution that is audited. 7 Conclusions The right to public information is a fundamental ments have surpassed those of other government right that the State must enforce and guarantee. branches. The implementation of arrangements The Judiciary—as a branch of government— to allow for the participation of society at vari- is not only obligated to disseminate the infor- ous levels of the justice system not only gener- mation it generates in the course of its daily op- ates opportunities for social scrutiny of judicial eration, but also plays a prominent role in the performance but also encourages a positive in- effective enforcement of this right. In that sense, teraction that enriches the jurisdictional role of judges should respect the same standards in terms the courts. For example, the use of Amici curiae of access to information as the other branches of and holding public hearings to deal with cas- government. Although there has been some re- es of great institutional import allow civil soci- sistance or lack of interest on the part of judi- ety organizations to participate in the decision cial institutions in accepting said standards, there making process, enriching the debate with their is a broad consensus around the concept that the opinions, but at the same time allowing the is- same requirements apply to them as to the pub- sues debated to reach the whole of society. lic administration, and therefore they have the Nevertheless, we need to underscore that the obligation to provide access to information both implementation of transparency reforms has fre- in connection with their administrative opera- quently been limited to pilot experiences or ini- tion and their jurisdictional functions. The same tiatives restricted to certain bodies within the is true with regards to transparency, since the Ju- judicial apparatus. diciary has to comply with the same require- With respect to the political economy of ments as other state bodies. A clear example is the reform processes, it is important to note that the requirement that judges submit assets and the justification of changes does not always nec- income disclosure statements, or of the require- essarily have to be normative. In other words, ment to disclose statistical information regard- although there exists constitutional and inter- ing their jurisdictional performance. national law, as well as jurisprudence from in- In spite of the previously mentioned re- ternational tribunals, that manifestly establish sistance, it should be noted that some Judicia- the Judiciary’s duty to respect transparency ries in the region have adopted measures that standards, there are also very basic and practi- have contributed—with various levels of depth cal reasons to convince judicial leaders of the and success—to improving their relationship importance of promoting these reforms, such as with society, and in some cases their achieve- the lack of citizen’s trust in the Judiciary, the low 35 36 Access to Information and Transparency in the Judiciary credibility of judges, and the core role of judicial previous sections, shows that there are still ma- institutions in governance and the consolidation jor challenges. Although some Judiciaries have of democracy. Tools such as access to informa- made efforts to adopt transparency and access tion and transparency reforms may contribute to information policies, others instead have on- to reversing the worrisome situation of the Lat- ly made a few isolated reforms. Precisely, a sig- in American Judiciaries in terms of their rela- nificant gap is the absence of a comprehensive tionship with society. policy, implemented in accordance with a re- form strategy, under the leadership of the su- perior courts, taking into account the political 7.1 The Status of economy of the changes, the costs and bene- Reforms fits, and the impact on the work of the Judiciary. Unfortunately, in some countries there is a This research started off with the premise of total lack of transparency and/or access to infor- identifying good practices or positive experi- mation initiatives.This, however, is not exclusively ences in the region. The previous sections have a failure of the Judiciary, but often affects govern- described initiatives from several parts of Lat- ment in general.This might suggest that the insti- in America that are promising. In that sense, a tutions of the justice system are not fully isolated first finding is that there already exist a series of from the reform process that takes place in other valuable and potentially replicable practices, so areas of government. In any case, there still remain those interested in reform need not start from information gaps related to the identification of zero. Also, many of the experiences identified the obstacles and barriers for the implementation are very sophisticated, revealing not only well- of transparency reforms in the region. thought out ideas but also a growing desire on It should be noted that, as illustrated by the the part of judicial authorities to take the first cases described in this research, in those coun- steps to improve transparency and access to in- tries where reforms have been effectively imple- formation in the justice system. mented, the impact has been positive. However, The purpose of this work was not, how- their potential to reverse situations of lack of ever, to document in detail the entirety of the transparency generated by cultures profound- vast deficit that still exists in Latin America in ly embedded in the judicial institutions for de- terms of transparency reforms. On the contrary, cades should not be overestimated.Transparency we deliberately focused on the achievements, reforms need to be part of a comprehensive the good practices and the opportunities to pro- process of change in the management of justice mote transformations both in the daily function systems, in the behavior of judges and in the re- of the Judiciary and in the conceptual construc- lationship of the Judiciary with society. tions around its obligations in terms of transpar- ency and access to information. 7.2 Opportunities In that sense, focusing exclusively on the re- markable practices in the region has probably International organizations and international given this piece an excessively optimistic tone donor agencies still have fertile ground ahead to regarding the impact of the described reforms. promote transparency reforms in the Judiciary. The truth is that, despite the achievements, a re- Still, although the challenge is a major one, the view of the status of reforms in Latin America, approach will not be totally new. Many of the as suggested by the experiences identified in the issues described in this document have already Conclusions 37 been addressed—for example by the IADB and handbooks, documenting successful reforms— the World Bank—in some of their judicial re- especially with regard to implementation— form projects in the region. Initiatives related to so that experiences can be replicated in other management reform, for example, have promot- countries. Many of the practices identified in ed the adoption of information systems to al- this report had not been previously described, low for the monitoring of court performance. thus limiting the possibility of multiplying the Without solid and reliable statistical information effect of the efforts made by the Judiciaries it is not possible to assess management problems that implemented them. There is an important or identify the inputs and strategies required to space in this area of dissemination of materials solve them. In other words, there already exists a for a synergy of efforts across donors and non- valuable universe of knowledge and capacity de- governmental organizations in the region. veloped by the international organizations that It is also worth mentioning that some of the can be reused to promote reforms from the op- good practices in terms of transparency and ac- tic of transparency and thus leverage their syn- cess to information have not yet been applied ergy with management reforms.54 by international tribunals with regard to their One of the first findings of this research is own operations. Some of the problems of opac- the lack of systematized information at the re- ity described in previous sections also affect re- gional and international level on transparency gional or international courts. For example, the and access to public information standards in processes for the appointment of judges to the the Judiciary. Also lacking are efforts designed Inter-American Court of Human Rights have to assess judicial systems based on their degree little transparency, involve complex political of compliance with said standards. In that sense, negotiations, and lack formal instances for the perhaps once objective indicators and param- participation of the region’s civil society orga- eters have been defined, it will be possible to nizations. It would therefore be extremely im- carry out regional studies with the purpose of portant to be able to conduct a comprehensive generating a “status review” or ranking of Judi- study of the challenges and opportunities for ciaries, identifying those which have introduced promoting transparency reforms in the various greater reforms and comply with “good prac- regional and international tribunals. tice” in these matters. With regard to opportunity, it is well The absence of information on this issue is known that many countries in the region, such compounded by the scarce documentation that as Argentina, still lack access to information exists on some of the examples described in this laws. Moreover, in those countries where le- report. Little is known, for example, about the gal frameworks have been adopted, it is not fre- impact of using the media to disseminate the quent for such rules to apply to the Judiciary. In work of the Judiciary (as in the case of Mexico principle, it would be desirable for all countries and Brazil), or on the results of implementing to have legal frameworks, approved by Con- public hearings to resolve cases with significant gress,55 recognizing and guaranteeing the right institutional impact (Argentina). Along the same to access public information at all levels and lines, some issues merit greater research efforts; branches of government, from municipalities for example the relationship between justice, the to provinces, and including the Legislative and mass media and citizens. the Judicial branches of government. In that Likewise, there is a deficit in terms of dissem- sense, there still remain major efforts to dissem- ination of materials such as manuals, toolkits or inate and raise awareness in order to position 38 Access to Information and Transparency in the Judiciary the issue on countries’ agenda and achieve the risdictional operation of the Judiciary (publicity legal recognition and the specific regulations of sentences and other decisions; access to case required to ensure full access to public infor- files; publicity of the processes within courts, mation. among others). This is a sensitive issue that has Likewise, these legal frameworks should in- generated debate among specialists. The situ- clude the Judiciary among those required to ation in which political systems are currently provide information. Once again, it is necessary found in Latin America, however, offers a com- to strike an appropriate balance between respect plex scenario. In light of the situation of Judi- for the independence of the justice system and ciaries in the region, the transparency problems its obligation to be accountable to citizens. As described in this report, and the lack of credi- a minimum, access to public information laws bility of judges and tribunals in the eyes of cit- must ensure access to the information related to izens, it is necessary for access to information the administrative aspects of the operation of the laws to impose high standards that result in ef- judicial institutions: budgets, financial manage- fective policies to ensure a broad recognition of ment, procurement, personnel roster, etc. It re- citizens’ right to access information generated mains to be determined what should be done by the justice systems, including that which re- regarding the information that relates to the ju- sults from its jurisdictional activity. 8 Table/Summary   Categories Tools Experiences Access to informa- Information on the – Access to information Chile: Public Procurement tion and transpar- management of public on procurement. Law. ency, related to the funds – Access to bidding docu- Guatemala: Information on internal operation/ ments. procurement processes. administrative – Access to budgetary Mexico: Budgetary informa- aspects of the information. tion on the Internet. Judiciary Information on the – Civil society participa- Argentina: Transparency and appointment of judges tion in the mechanisms participation in the mecha- and officials to select judges. nisms to appoint judges. – Publicity of the various Colombia: Participation in stages in selection and the election of Constitutional removal mechanisms. ribunal Justices. – Broad dissemination of the list of applicants and their background. Information on assets – Access to income and Argentina: Public Ethics Law. and income disclosure assets disclosure state- statements ments. Information on meet- — — ings of high level officials Access to statistics – Statistical information in Costa Rica: Statistics on the the Internet and in offi- work of the Judiciary. Annual cial publications (Annual Statistical Reports. Statistical Reports etc.). – Information on number of cases filed, pending and completed over a period of time; dura- tion of cases; number of sentences per subject; budget and costs; num- ber of staff; etc. (continued on next page) 39 40 Access to Information and Transparency in the Judiciary   Categories Tools Experiences Access to informa- Publicity of the sen- – Sentences available on Mexico: Publication of sen- tion and transpar- tences of the Superior the Judiciary’s website. tences on the website. ency practices Courts of Justice – Dissemination of the Argentina: “Court Rulings related to jurisdic- work of the Superior within Citizens Reach”. tional functions of Courts through the mass United States: Coverage of the Judiciary media. court cases. Regional: Justice and the media. Access to case files in – Consultation and access Argentina: Participation of case of corruption of to court case files NGOs in corruption cases. public officials Information on the inter- – Information on the flow Costa Rica: Publication of the nal working of Supreme of files within the courts. minutes of the Court Plenum Courts – Information on disciplin- and the Superior Council, and ary procedures against information on disciplinary judges. proceedings against judges. Transparency in court – Regulation of Amicus Argentina: Use of Amici cur- sessions and mecha- Curiae. iae by the Argentine Supreme nisms to enhance civil – Establishment of hear- Court. society participation ings to examine major Mexico: Use of public hear- cases. ings in cases of institutional – Dissemination of court relevance. sessions. Mexico: TV Channel on judi- – Creation of judicial cial issues. observatories. Brazil: Radio channel on – Publicity of oral hear- judicial issues. ings in trials with public Colombia: Observatory of relevance. Constitutional Justice. Peru: TV broadcasting of Fujimori’s trial. References ACIJ, 2006. “La parálisis de la justicia frente a ca- na.” SELA, Editorial del Puerto, Buenos Ai- sos de corrupción”, ACIJ, Buenos Aires. res. Available at http://islandia.law.yale.edu/ Acuña-Alfaro, Jairo and Maria González de sela/sela2005.htm. Asís. nd. “Gobernabilidad y auditorías so- Biebesheimer, Christina and Mark Payne. 2001. ciales en América Latina: retos para la im- “IDB Experience in Justice Reform: Les- plementación y replicabilidad.” World Bank sons Learned and Elements for Policy For- Institute, available at: http://info.world- mulation.” Inter-American Development bank.org/etools/docs/library/109646/ Bank, Washington DC. curso_lac/curso_lac/Documents/Gobern- Binder, A., J. Vargas, and C. Riego. 2003. “Los abilidadyAuditoriaFINAL.pdf jueces y la información. Sistema de infor- Aguilar Rivera, José A. 2006. “Transparencia mación e instituciones judiciales en el mar- y democracia: claves para un concierto.” co de la reforma judicial.” Revista Sistemas Cuadernos Transparencia 10, Instituto Fed- Judiciales, Año 3, Nº 6. eral de Acceso a la Información Pública (IF- Buruiana, Procop, Sandra Elena, and Violaine AI), Mexico City, Mexico. Autheman. 2004. “Global best practices: In- Angell, Alan and Julio Faundez. 2005. “Reforma come and asset disclosure requirements for judicial en América Latina. El rol del Ban- judges. Lessons learned from Eastern Eu- co Interamericano de Desarrollo.” Revis- rope and Latin America.” IFES Rule of Law ta Sistemas Judiciales, Nº 8, CEJA-INECIP, White Paper Series. Washington, D.C. Santiago de Chile. Carter Center (2009) Plan of Action for the Asociación por los Derechos Civiles. 2006. “Fun- Advancement of the Right of Access to cionamiento, labor e independencia de la Su- Information. Available at http://www.carter- prema Corte de Justicia de la Provincia de center.org/resources/pdfs/peace/americas/con- Buenos Aires”, ADC, Buenos Aires, Argentina. ference2009/ATI-AmericasPlan-full.pdf Athié, Alicia. 2005. “Rendición de cuentas, ac- Centro de Derechos Humanos. 2004. “Transparen- ceso a la información y transparencia en los cia, rendición de cuentas y lucha contra la cor- presupuestos públicos”, Colectivo por la rupción en América.” Informe de la reunión Transparencia,Vol. 5. regional, Santiago de Chile, December 3–5. Bergallo, Paola. 2005. “Justicia y experimental- CEJA. 2007. “Índice de Accesibilidad a la Infor- ismo: la función remedial del Poder Judicial mación Judicial en Internet.” Third Edition. en el litigio de derecho público en Argenti- Santiago de Chile. 41 42 Access to Information and Transparency in the Judiciary CEJA-INECIP. 2003. “Gestión Judicial y Ad- Due Process of Law Foundation. 2007c.“Necesita- ministración de Tribunales.” Sistemas Judi- mos poderes judiciales fuertes e independi- ciales Año 3, Número 5. Buenos Aires. entes.” Aportes DPLF, Año 1, Nº 4. Available CELS. 2007. La lucha por el derecho. Siglo XXI, at www.dplf.org/uploads/1198109374.pdf, Buenos Aires. 2007. Comisión Andina de Juristas. 2003. “Corrup- Due Process of Law Foundation. 2007d. “Trans- ción judicial. Mecanismos de control y vig- parentar la Justicia.” Aportes DPLF, Año ilancia ciudadana.” Comisión Andina de 1, Nº 3. Available at www.dplf.org/up- Juristas. Lima, Peru. loads/1191333619.pdf, 2007. Comisión Interamericana de Derechos Huma- Due Process of Law Foundation. 2008. “La era nos (CIDH). 2007.“Estudio especial sobre el de la transparencia y el acceso a la infor- Derecho de acceso a la información.” Rela- mación.” Aportes DPLF, Año 2, Nº 6. Avail- toría especial para la Libertad de Expresión. able at www.dplf.org/uploads/1217951188. Available at www.cidh.oas.org/relatoria/ pdf, 2008. section/Estudio%20Especial%20sobre%20 Due Process of Law Foundation. 2008b. “Ob- el%20derecho%20de%20Acceso%20a%20 servando al Poder Judicial desde la sociedad la%20Informacion.pdf. civil.” Aportes DPLF, Año 2, Nº 7. Available Concha Catú, H., S. López Ayllón, and L.Tacher at www.dplf.org/uploads/1221498674.pdf, Epelstein, coords. 2004. Transparentar al Esta- agosto de 2008. do: la experiencia mexicana de acceso a la infor- Elena, S., P. Buruiana, and V. Autheman. 2004. mación. Mexico City, Mexico. “Global best practices: Income and asset dis- Corporación Latinobarómetro. 2007. “Informe closure requirements for judges. Lessons Latinobarómetro 2007. Banco de Datos en learned from Eastern Europe and Latin Amer- Línea.” Available at www.latinobarometro.org. ica.” IFES Rule of Law White Paper Series. Dahl, Robert. 1957. “Decision-making in a De- Epp, Charles. 1998. The Rights Revolution: Law- mocracy: The Supreme Court as a National yers, Activists, and Supreme Courts in compara- Policy-maker”, 6 J.PUB. L. 279. tive Perspective. University of Chicago Press, Dakolias, María. 1996. “The Judicial Sector in Chicago. Latin America and the Caribbean: Elements Feeley, Malcom. 2000. Judicial policy making in the of Reform“,Technical Note 319,The World modern State: How the courts reformed America’s Bank, Washington DC. prisons. Cambridge University Press, Cam- Due Process of Law Foundation. 2003. “Inicia- bridge. tivas de la sociedad civil para la transparen- Fox, Jonathan. 2007.“The uncertain relationship cia en el sector judicial.” Washington DC, between transparency and accountability.” USA. Development in Practice,Vol. 17, Nº 4–5. Due Process of Law Foundation. 2007a. Com- González de Asís, María. 2006. “Anticorruption parando transparencia. Un estudio sobre acceso a Reform in Rule of Law programs.” World la información en el Poder Judicial. Washington Bank Institute, Washington DC, USA. DC, USA. Gregorio, Carlos. 2003. “Internet, transparencia Due Process of Law Foundation. 2007b. “El y acceso a la información judicial.” Buenos combate a la corrupción judicial.” Aportes Aires, Argentina. DPLF, Año 1, Nº 1. Available at www.dplf. Gregorio, Carlos. 2005. Acceso a la información ju- org/uploads/1187278790.pdf, 2007. dicial; un equilibrio de derechos.” in “El acceso References 43 a la información judicial en México: Una visión Jackson, Donald and Neal C. Tate. 1992. Com- comparada. eds. José Antonio Caballero Juárez, parative judicial review and public policy. Green- Carlos Gregorio, Margaret Popkin, and Er- wood Press, Westport CT. nesto Villanueva, 275. Langbroek, P. M. and W. J. M. Voermans, eds. Hammergren, Lynn. 2002. “Do Judicial Coun- 2005. “Provision of information by courts cils further judicial reform? Lessons from and court administrations: A comparative Latin America.” Rule of Law Series, De- inventory of eight European countries and mocracy and Rule of Law Project, Nº 28, in the USA. A research project commis- Carnegie Endowment for International sioned by the Dutch Council for the Judi- Peace, Washington DC, USA. ciary.” Utrecht-Leiden, The Netherlands. Hammergren, Lynn. 2007. Envisioning reform: im- López Ayllón, Sergio and Alejandro Posadas. proving judicial performance in Latin America, 2007.“Las pruebas de daño e interés público Pennsylvania State University Press, Penn- en materia de acceso a la información. Una sylvania, USA. perspectiva comparada.” Derecho compara- Hammergren, Lynn. 2005. “Uso de la investig- do de la información, Mexico. ación empírica para el reenfoque de las re- López Ayllón, Sergio. 2007. Transparencia y ac- formas judiciales: Lecciones desde cinco ceso a la información en los programas sociales. países.” América Latina Hoy, Nº 39, Edicio- Una propuesta de política pública. Proyecto de nes Universidad de Salamanca, Salamanca, Protección de Programas Sociales, UNDP, Spain. Mexico City, Mexico. Helmke, Gretchen. 2004. “Courts under con- Maravall, José María and Adam Przeworski. straints: Judges, generals, and presidents in 2003. Democracy and the Rule of Law. Cam- Argentina.” Cambridge University Press, bridge University Press, Cambridge. Cambdridge, USA. Available at: www.undp. Marinero, José. 2008. “Observatorios judiciales org/governance/docs/A2I_Guides_Right- en América Latina: temas esenciales y me- toInformation.pdf, 2004. jores practices.” Aportes, DPLF, Año 7, Nº Herrero, Álvaro. 2005. “Entre democracia, 2, August. política y justicia: Un análisis político insti- McClymont, Mary and Stephen Golub. 2001. tucional de la Suprema Corte de Justicia de “Caminando hacia la justicia.” Fundación la Provincia de Buenos Aires.” Fundación Ford, Santiago de Chile. Pent, Buenos Aires, Argentina. Mendez, Juan, Guillermo O’Donnell and Paulo Instituto Federal de Acceso a la Información Pinheiro. 1999. The (Un)Rule of Law and the Pública (IFAI). 2006. Transparencia, acceso a la Underprivileged in Latin America. University información y datos personales. Marco normativo. of Notre Dame Press, Notre Dame. Mexico City, Mexico. Pásara, Luis. 2003. “El conflicto entre medios de Inter-American Human Rights Commission, comunicación y justicia.” Reforma Judicial, Special Rapporteur for Freedom of Ex- Comisión Nacional de Tribunales Superiores pression. 2007. “Estudio especial sobre el de Justicia, Instituto de Investigaciones Ju- derecho de acceso a la información.” 46. rídicas de la Universidad Nacional Autóno- Available at: www.cidh.oas.org/relatoria/ ma de México, Nº 3, Mexico City, México. section/Estudio%20Especial%20sobre%20 Pérez Tort, María Julia. 2007. “Corrupción judi- el%20derecho%20de%20Acceso%20a%20 cial en Argentina.” in Transparency Interna- la%20Informacion.pdf. tional, Informe Global de la Corrupción 2007. 44 Access to Information and Transparency in the Judiciary Corrupción en sistemas judiciales, Editores del Transparency International. 2007. “Informe Puerto, Buenos Aires, Argentina. Global de la Corrupción 2007” Popkin, Margaret. 2002. “Iniciativas para me- Transparency International. 2007. “Enhancing jorar la independencia judicial en Améri- judicial transparency. Policy position”, Nº 1, ca Latina: Una perspectiva comparativa.” Berlin, Germany. USAID, Pautas para promover la indepen- Transparency International. 2007. Informe Global dencia judicial y la imparcialidad, Washing- de la Corrupción 2007: Corrupción en sistemas ton DC, USA. judiciales. Editores del Puerto, Buenos Aires, Popkin, Margaret. 2004. “Fortalecer la indepen- Argentina. dencia judicial.” Pásara, Luis, ed., La expe- Ungar, Mark. 2001. Elusive reform: Democracy and riencia latinoamericana en reforma de la the Rule of Law in Latin America. Lynne Ri- Justicia, Instituto de Investigaciones Jurídi- enner Publishers, EE.UU. 2001. cas, UNAM/Instituto de Defensa Legal, United Nations Development Programme. Mexico DF/Lima, México/Perú. 2006. “A guide to measuring the impact of Popkin, Margaret. 2005. “Independencia judi- right to information programmes.” Practi- cial, democracia y desarrollo. Retos para la cal Guidance Note. Available at www.undp. independencia judicial en América Latina org/governance/docs/A2I_guides_rightto- y Estados Unidos.” Conferencia “Indepen- infoimpact.pdf, 2006. dencia Judicial, Desarrollo y Democracia,” United Nations Development Programme. Fundación Esquel/Coalición Nacional por 2004. “Right to information practical guid- la Justicia, Quito, Ecuador, March 3. ance note.” New York. Prillaman, William. 2000. The judiciary and dem- United Nations Development Programme. ocratic decay in Latin America: Declining confi- 2004. “La democracia en América Latina. dence in the Rule of Law. Westport, Praeger, Hacia una democracia de ciudadanas y ciu- USA. dadanos”, Aguilar/Altea/Taurus/Alfaguara, Solano, Monserrat. 2004. “El acceso a la infor- Buenos Aires, Argentina. mación judicial en Perú, Chile y Argentina.” USAID. 2002. “Pautas para promover la in- CEJA, Santiago de Chile. dependencia y la imparcialidad judicial”, Schedler, Andreas. 2004. “¿Qué es la rendición Office of Democracy and Governance, de cuentas?” Cuadernos de Transparencia 03, Washington DC, EE.UU. Instituto Federal de Acceso a la Información Vargas Viancos, Juan Enrique. 2002. “Indepen- Pública (IFAI), Mexico City, México. dencia y responsabilidad judicial. Indepen- Shapiro, Martin. 1981. Courts: A Comparative dencia versus control del Poder Judicial”, and Political Analysis. University of Chicago Revista Sistemas Judiciales, Nº 4, INECIP- Press, Chicago. CEJA, Buenos Aires, Argentina, December. Schedler, Andreas. 1999. The Self-restraining State. Voermans,Wim. 2007. “Judicial transparency fur- Lynne Rienner, Boston. thering public accountability for new judi- Sieder, Rachel et al. 2005. The Judicialization of ciaries.” Utrecht Law Review, Vol. 3, Nº 1, Politics in Latin America. Palgrave Macmillan, June. Available at www.utrechtlawreview.org. New York. Tate, C. and Vallinder Torbjorn. 1997. The glob- al expansion of Judicial Power. New York Uni- versity Press, New York. Endnotes 1  16  The original version of this paper was published, in For more information, see: www.dplf.org, www.ce- Spanish, in 2009. jamericas.org and www.britishcouncil.org. 2  17  Shapiro 1981; Dahl 1957; Jackson and Tate 1992; Feeley Corporación Latinobarómetro 2007. 18  2000; Tate and Torbjorn 1997. See for example, the last reports of Transparency In- 3  Epp 1998; Sieder et al. 2005. ternational, among them: Transparency International, “In- 4  Schedler 1999; Maravall and Przeworski 2003. forme Global de la Corrupción 2007: Corrupción en 5  Throughout the text we will often use a broad concept sistemas judiciales”, Editores del Puerto, Buenos Aires, Ar- of “transparency reforms”, including tools such as access gentina, 2007. 19  to information and publicity of the actions of state actors. Transparency International, “Enhancing Judicial Trans- 6  Hammergren 2005. parency: Policy Position”, Nº 1, Berlin, Germany, 2007. 7  20  Additionally, these policies operate as mechanisms to al- López Ayllón addresses “explanation and justification low for the internal control of corruption within the Judi- of actions” as a component of transparency, referring to ciary itself. It is difficult to imagine that corruption may be the state’s obligation specifically to make sense of informa- controlled and fought against using a state punitive scheme tion, providing a thorough justification of actions, and en- that suffers from the same problem that it is designed to abling a dialogue between society and the public powers. solve. See López 2007b. 8  21  Mendez and Pinheiro 1999; CELS 2007; Bergallo 2005. See, for example: Prillaman 2000; Ungar 2001; Helmke 9  Rule of Law is defined as the degree of trust bestowed 2004; and Hammergren, 2007. 22  by agents on a society’s rules, and the extent to which they See, for example, Hammergren, 2002; and Popkin, 2002. 23  behave accordingly, including the quality of contract and The basic principles relating to the independence of the property rights enforcement, police and courts, as well as Judiciary declared in 1985 (UNHCHR) foresee that “the the incidence of crime and violence. Available at www.go- independence of the Judiciary will be guaranteed by the vindicators.org. state and enshrined in a country’s constitution or legisla- 10  See www.bertelsmann-transformation-index.de. tion.”Various international instruments address the issue of 11  See http://report.globalintegrity.org. These variables judicial independence. Among them: International Cove- are mentioned in the section on “Accountability of the Ju- nant on Civil and Political Rights (1966); European Con- dicial System.” vention on Human Rights (1951); American Convention 12  Biebesheime and Payne 2001. See also Angell and Faun- on Human Rights (1978); African Charter of Human and dez 2005. According to these authors, “since 1993 and until Peoples’ Rights (1986); United Nations Basic Principles on the end of 1999, there were 23 loans and 46 technical assis- the Independence of the Judiciary (1985); Beijing State- tance operations designed to promote legal reforms in 18 ment of Principles of the Independence of the Judiciary of the 26 IDB member countries, with a total investment (1995); Bangalore Principles of Judicial Conduct (2002); of US$435 million.” See also Dakolias 1996. Inter-American Convention Against Corruption (1996); 13  Among DPLF’s most relevant publications on the sub- United Nations Convention against Corruption (2003). 24  ject, are: “Iniciativas de la sociedad civil para la transpar- In some cases, the fact of presiding over a court entails encia en el Sector Judicial” (Civil Society Initiatives for some privileges or additional special functions. For exam- Transparency in the Judicial Sector) 2003; “El acceso a ple, in the province of Buenos Aires (Argentina), the pres- la información judicial en México” 2005; “Comparando idents of the appellate courts of the city of La Plata (the transparencia” 2007; and “Disclosing Justice” 2007. provincial capital) serve as members of the province’s Elec- 14  See, for example, CEJA 2007. toral Board on a rotary basis. This is an agency with a great 15  Solano 2004. This work was carried out together with strategic value for political sectors, since it is responsible the Special Rapporteur for Freedom of Expression of the for the settlement of disputes related to the local elector- Inter-American Commission on Human Rights. al processes. Likewise, the president of the Supreme Court 45 46 Access to Information and Transparency in the Judiciary 38  of Justice of said province, besides being a member of the The arrangements to appoint judges vary from country Electoral Board, is also the chair of the Judicial Council, to country. Even within a country there may differences the agency responsible for the appointment of judges, pub- between the appointment of lower court judges or Su- lic defenders, prosecutors and other judicial officers (Her- preme Court Justices. In Latin America, the agencies that rero 2005; ADC 2006). nominate candidates to cover judicial vacancies vary con- 25  Popkin 2004. siderably. In some cases, this is the responsibility of the Ex- 26  For more information on the balance between indepen- ecutive Branch (Argentina, Brazil, Mexico, Panama), while dence and accountability, see Vargas Viancos 2002. in others it is the remit of the Supreme Court (Chile, Ec- 27  In González de Asís 2006, the author illustrates this uador), Judicial Councils or similar institutions (Bolivia, point with the case of Brazil, where, thanks to the 1988 Colombia, Paraguay), or special committees (Guatema- Constitution, the independence and autonomy of the Ju- la, Honduras). Once the nominations have been made, the diciary had reached unprecedented levels (with full control power to select and appoint judges falls on a different agen- of administrative, disciplinary, budgetary and staffing mat- cy. Although it is in general the Legislative Branch (Ar- ters), far from any potential political interference. In this gentina, Brazil, Costa Rica, Ecuador, Guatemala, Honduras, case, the problem did not arise from a lack of independence Mexico, Guatemala, Panama, Paraguay, Uruguay), in some but, precisely the opposite: an excessive autonomy with no cases this responsibility falls to the Supreme Court (Co- external oversight or accountability mechanisms and, even lombia) or the Judicial Council (Peru, Dominican Repub- worse, with this independence making the implementa- lic) (UNDP 2004, 94–95). 39  tion of internal changes particularly difficult. The main Popkin 2004. 40  challenge consisted in finding a balance between indepen- Good practices in terms of judicial independence re- dence and accountability that would allow for an oversight form suggest that it needs to be balanced with changes that of the work of judges, reducing corruption opportunities. generate greater accountability of judges. A very indepen- See: http://siteresources.worldbank.org/INTLAWJUS- dent Judiciary that lacks the obligation to be accountable to TINST/Resources/AnticorruptionReform.pdf. society may encourage corporatist behaviors, corrupt prac- 28  Schedler 2004. tices or increased opacity in its conduct (USAID 2002). 29  41  Aguilar Rivera 2006. Elena and Autheman 2004. 30  42  By access to public information we understand the right It is important to clarify that although many times there of every individual to seek, request, and receive the infor- is a requirement to disclose this information, part of it is mation that is held by state agencies. not accessible to the public. This exception is founded in 31  Laws on access to public information recognize a broad the need to safeguard certain sensitive data, the publica- access to the information generated and gathered by the tion of which could affect the right to privacy of the filer, state, that can only be denied in specific and well-founded such as the location of the real estate, bank account num- situations that fall within the established legal framework. bers, and so forth. 32  43  Lopez and Posadas 2007. DPLF 2007a. 33  44  One of the first documents in this the field is the doc- The publication of sentences is an obligation that ap- ument which delineates the Lima Principles on Access to plies to judges at all levels, including those at the first and Information. Its section 8 establishes the exemptions to ac- the second instances, higher courts and specialized courts. cess to information. [[Please provide the name and date of Given that the publicity of sentences is very limited in Lat- the publication, and add it to the reference list at the end in America, for strategic reasons this document emphasiz- of this document.]] es the courts with the greatest impact (higher courts), with 34  Inter-American Human Rights Commission 2007. the expectation that judges at the lower levels will later 35  Colombia’s Constitutional Tribunal, in its ruling C-491 replicate such practices. 45  of 2007, established that a restriction to access to informa- According to the due process rules and the standards set tion is legitimate “only if: i) it is authorized by law or the by the Inter-American Court of Human Rights, the pub- Constitution; ii) it is clear and precise; iii) public servants licity of sentences, including when they are not firmly es- state their decision in writing; iv) the reserve is tempo- tablished, does not impinge on the not-guilty principle. In rary; v) there are adequate systems to safeguard informa- some cases it can give rise to conflicts in terms of the right tion; vi) there is administrative and judicial oversight of the to privacy, but that can be remedied—under exceptional reserved decisions or actions; vii) reserve is strictly sub- circumstances—by limiting the identification of the par- ject to the principles of reasonability and proportionality; ties to the case, for example by replacing names with their and viii) there are legal means to challenge the decision to respective initials. 46  maintain certain information secret.” Pérez Tort 2007. Corrupción en sistemas judiciales, 36  IAHR Court, Case Claude Reyes and others vs., Chile, 2007. See also ACIJ 2006. 47  Sentence from September 19, 2006, Series C, No. 151, par. Gregorio 2005, 275. 48  90, 91 & 92. México. Instituto Federal de Acceso a la Información 37  Athie, Alicia, “Rendición de cuentas, acceso a la infor- Pública/Ley de Acceso a la Información Pública. 49  mación y transparencia en los presupuestos públicos”, Col- Art. 13.2 of the American Convention on Human ectivo por la Transparencia,Vol. 5, 2005. Rights limits the right to exercise freedom of expression with respect to the “rights or the reputation of others.” Endnotes 47 Therefore, the audiovisual broadcasting of a criminal trial likewise, Herrera Ulloa, paragraphs 127 and 128; Palamara should take into account the honor, privacy, and the right Iribarne, paragraph 83). 51  to their own reputation of those who participate in the McClymont and Golub 2001. 52  process, a matter that is especially sensitive in the case of On judicial observatories, see Marinero 2008. 53  sex crimes, crimes against minorities, or when the protec- Acuña-Alfaro and González de Asís, nd. 54  tion of witnesses or whistle blowers is required. See, for example: “Gestión Judicial y Administración de 50  On this last point, the jurisprudence of the IACHR in Tribunales.” Sistemas Judiciales Año 3, Número 5. CEJA- this regard is especially applicable. According to that court, INECIP, Buenos Aires; Angell and Faundez 2005; Biebe- the statements relating to public officials, politicians, and sheimer and Payne 2001; and Dakolias, 1996. 55  private individuals who engage in activities that are sub- Some countries have created arrangements that recog- ject to public scrutiny merit a different level of protec- nize the right to access public information by means of tion. The reason is that these are people who voluntarily presidential decrees or similar instruments. Although these decided to submit to a more rigorous scrutiny by citi- are important steps forward, their impact is limited since zens, which includes the duty of being accountable and re- they are not implemented by laws of Congress, which ceiving criticism (IHR Court in re Canese, par. 103. See, would ensure a broader scope and application. About the World Bank Institute’s Governance Practice Governance is one of seven priority themes in the World Bank Institute’s recently launched renewal strat- egy—a strategy that responds to client demand for peer-to-peer learning by grounding WBI’s work in the distillation and dissemination of practitioner experiences. The Institute is committed to building knowledge and capacity on the “how to” of governance reforms, with emphasis on supporting and sustaining multi- stakeholder engagement in bringing about such reforms. WBI’s Governance Practice works with partners, including networks of country and regional institutions, to develop and replicate customized learning programs. Its programmatic approach aims at building multi- stakeholder coalitions and in creating collaborative platforms and peer networks for knowledge exchange. The Practice focuses on three thematic areas: governance of extractive industries, procurement reform, and access to information. A fourth program supports anti-corruption programs for Parliamentarians, the Judiciary and the Private Sector. A Mobilizing Stakeholders for Reform group links stakeholder groups in support of these priority areas, documents and codifies knowledge, and builds capacity in cross-cutting areas. And lastly—but importantly—a Leadership Development Program focuses on strengthening the ca- pacity of potential leaders to harness the energies of stakeholder groups and to and channel these efforts toward reform. 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