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					   Promoting Judicial Independence and
   Accountability through a Participatory
   Methodology and Increased Access to
                Information:

A Model State of the Judiciary Report for the
                  Americas
                                   Quito, Ecuador
                                    July 24th, 2003
A Model State of the Judiciary Report for the
Americas
 Key interrelated themes that must be integrated into any
  comprehensive judicial reform program:
    Judicial Independence
    Judicial Accountability
    Judicial Corruption
 Best consensus strategy is to promote transparency
 Tools to enhance transparency and quality information:
      State of the Judiciary Report
      Academic and applied research
      Access to information laws, policies and decisions;
      Conflict of interest and income and asset disclosure laws
Developing the Model Framework for a State of
the Judiciary Report: IFES Methodology

  Long process that began 4 years ago with the
   development of the Judicial Independence Guide;

  Broader analysis beyond the research in the Guide, led
   us to the conclusion of the urgent need for a
   standardized monitoring and reporting mechanism;
Developing the Model Framework for a State of
the Judiciary Report: IFES Methodology (Cont’d)
  We identified consensus and best practices based on a
   comparative analysis of:
     Key international treaties, conventions and case law;
     Key non governmental protocols, declarations and
      emerging best practices;
     Current academic and applied research, including all
      accessible best practices and lessons learned papers.

  Based on our comparative research and analysis, there
   was consensus on 18 Judicial Integrity Principles;
Developing the Model Framework for a State of
the Judiciary Report: IFES Methodology (Cont’d)
  We then reflected upon our own experience in research,
   policy-making and programming and conducted internal
   meetings and informal discussion with experts from all
   regions to refine our thinking;

  We designed a model framework for a State of the
   Judiciary Report;

  The implementation of the State of the Judiciary Report
   would allow us to monitor reforms in Latin America and
   increase access to high-quality comparative judicial
   information.
Context for the Americas: Common Problems

 Growing distrust of democratic institutions;

 Rising rates of crime, unemployment and
  poverty;

 Low ranking on global public, business and
  government perception surveys.
       Global Perception of Corruption (2001)*
                                       1
        Absence of Corruption Index




                                      0.8


                                      0.6


                                      0.4


                                      0.2


                                       0
                                            OECD   Central and   East Asia   Middle East    Latin     Sub-     CIS   South Asia
                                                    Eastern                   and North    America   Saharan
                                                    Europe                      Africa                Africa

* Source: World Bank – Kaufmann, Kraay, and Zoido-Labaton (2001). The indicator has been
normalized from 0 to 1m with higher scores indicating lower levels of corruption.
       Confidence in the Judicial System (2001)*
                                                    70
          Confidence in the Judicial System Index




                                                    60

                                                    50

                                                    40

                                                    30

                                                    20

                                                    10

                                                     0




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* Source: Latinobarómetro 2001. The scores represent the percentage of those who expressed that
they have “a lot” or “some” confidence in the judiciary.
Context for the Americas: Common
Achievements of the 1980s and 1990s
 Democratization and adoption of important bilateral
  and regional trade agreements;
 Many judiciaries are now more independent and
  viable;
 Positive impact of reforms on human rights;
 Stronger and more effective civil society and
  advocacy groups;
 Regional commitment to fight corruption;
 Trend for more open government and access to
  information.
Selected Lessons Learned from Judicial
Reform in the Americas
 Legal and judicial reforms are fundamentally political
  and crosscutting;

 The reform process should thus be strategic,
  transparent, participatory and linked to broader
  reforms;

 Judicial independence, accountability and corruption
  issues are inextricable linked and must therefore be
  balanced;
Selected Lessons Learned from Judicial
Reform in the Americas (Cont’d)
 New institutions created to promote judicial
  independence, transparency and accountability,
  such as the judicial council or ombudsman, must
  also operate in an independent, transparent and
  accountable manner and be subject to checks and
  balances;

 Public trust in the judiciary and the reform is the sine
  qua non condition to developing a rule of law culture.
Ideas for Future Programming Directions
 More holistic, participatory and transparency
  oriented programming linked to larger political
  reform agendas, including:
    Securing more resources for high priority reforms
    Promoting more transparent judicial career processes
    Adopting access to judicial information laws and policies
    Reducing the cost and time in accessing the judicial
     system, e.g., small businesses and individuals
    Supporting public education and coalition building
    Addressing systemic judicial corruption and the fair and
     effective enforcement of judgments
    Implementing a standardized participatory monitoring and
     reporting framework.
Promoting Judicial Independence and
          Accountability:

       “From Cairo to Quito”



                               Quito, Ecuador
                                July 24th, 2003
IFES Judicial Independence and Rule of Law
Research and Toolkit
 Judicial Independence Data and Conferences

 Additional Research and Programming:
    Rule of Law Tools
    Enforcement of Court Judgments
    Legal Barriers to Small Business Development


 State of the Judiciary Report
Guidance for Promoting Judicial Independence
and Impartiality (Fall 2001)
• Case Studies:
   Africa: Kenya, Malawi, Nigeria, Uganda, Zambia,
    Zimbabwe
   Americas: Argentina, Bolivia, Chile, Costa Rica,
    Dominican Republic, El Salvador, Guatemala,
    Honduras, Panama, Paraguay
   Central and Eastern Europe: Bulgaria, Georgia, Poland,
    Romania, Slovakia, Ukraine
   Other: Egypt, the Philippines

• Key Topics:
   Judicial Independence and Accountability
   Transparency
   Civil Society
           IFES Judicial Independence Matrix*
               Constitutionally        Constitutionally protected         Clear/limited jurisdiction        Judicial review          Independent judicial     Judicial council’s role   2;3
              protected judicial         court jurisdiction 1             of extra-judicial courts                 1                     council 2
             independence 1                                                           1

              Judicial council’s           Adequate judicial             Impartial judicial selection       Impartial judicial      Impartial disciplinary    Internal non-discrimination
              membership 1                 qualifications 1                   process 1;2               promotion process 1;2         process 1;2;3                        1

            Security of tenure     1    Physical and economic            Limited judicial immunity      Desirability of judgeship    Adequate salaries,        Effective control over the
                                              safety 1                               3                               1              benefits and pensions         judicial budget 1
                                                                                                                                              1
              Adequate judicial        Effective control over the         Effective control over         Improvement of court        Transparent case           Freedom from external
               resources 1                 support staff 1               court administration 1            administration 1         assignment process           interference 1;2;3
                                                                                                                                           1;2
            Freedom from internal        Effective training      1        Effective performance            Effective periodic       Effective judicial code    Adequate anti-corruption
             interference 1;2;3                                           tracking and reporting        performance evaluation          of ethics 3                measures 3
                                                                                    2;3                            2;3
              Effective punitive        Judicial internal control          Civil society – judicial        Income and asset         Rationale for w ritten    Public access to court and
             measures against                      2;3                    w atchdog groups 2;3              disclosure 2;3             decisions 2                legal services 1
             corrupt judges 3

           Effective court reporting     Public access to legal              Judicial and legal           Fair and effective            Independent           Effective judicial sanctions
                       2                and judicial information          professional access to         enforcement of court       enforcement agents –       for non-enforcement 3
                                                    2                        legal and judicial             judgments 3                   entity 3
                                                                              information 2
             Clear and enforced           Clear and enforced                Clear and enforced            Judicial ombudsman         Viable independent       Viable independent judges’
             property rights 3            contract rights 3              individual rights and civil               2;3               bar association 1             association 1
                                                                                liberties 3

           Independent procuracy       Judicial public affairs       2        Independent and            Public perception of the    Clear and enforced       Freedom of expression and
              and investigative                                            informed press 1;2           judiciary as independent      conflict of interest         association 1
                 branch 1                                                                                            1               rules for judges 3



* The numbers correspond to the three categories designed by IFES for purposes of analysis of the data
gathered through its multi-faceted research: (1) Enabling Environment, (2) Transparency, (3) Accountability.
Confronting Interference through the
Institutional Structure
Research Findings and Lessons Learned
• Key institutional arrangements include:
    Transparent and objective appointment process
    Transparent and objective promotion and disciplinary
     processes
    Broad membership in judicial councils
    Security of tenure
    Judicial administrative and budgetary control
    Adequate judicial salaries and resources
    Fair and effective enforcement of judgments
           Main Obstacles to Judicial Independence*
           (IFES Analysis of Summer 2000 USAID/IFES Surveys**)
            100%
                              Anglophone Africa
                              Central and Eastern Europe
                              Latin America




                0%
                        Parliamentary      Economic         Criminal     Political Party     Judicial       Executive     Corruption
                         Interference     Enterprises     Enterprises       Network         Hierarchy      Interference


* This chart combines the data of expert surveys responses from 23 countries. In 14 countries, the experts listed other
obstacles: judicial self-restraint, inadequate judicial resources, society/cultural heritage, media interference,
prosecutorial interference, lawyers’ interference, litigants’ interference, bureaucratic interference, other pressure
groups, physical threats, judicial salaries and lack of adequate judicial standards.
** IFES survey responses are based upon its own analysis of the qualitative data provided in the USAID
questionnaires. Thus this information should not be interpreted as official USAID data.
       Selection and Appointment of Judges
       IFES Analysis of Summer 2000 USAID/IFES Surveys

                      Global*

                                         Objective/ Rather
                                         Objective
                 14        10            Subjective/ Rather
                                         Subjective
                                                                  Argentina
                                           Americas*                Chile
                                                                  Costa Rica
                                                                  Paraguay

                                                       4      Dominican Republic
                                             6                       Haiti
                                                                 El Salvador
                                                                  Honduras
                                                                   Panama
                                                                     Peru
* N/A = Guatemala
The results are based on Summer 2000 answers an IFES/USAID
questionnaire, except for Peru (2001) and Haiti (2002)
Regional Conferences: the Honduras Judicial
Independence Conference (April 2002) – Central
America
• Honduras Agreement

   Signed by the three branches of the State
   Adequate budgetary resources
   Need for legal reform
   Objective and transparent judicial evaluation
   Implementation of a judicial independence strategy
   Civil society participation
Regional Conferences: The Second Arab Justice
Conference (Cairo, February 2003) – Middle East
and North Africa
• Cairo Declaration

   Country and regional coalition to promote and
    support judicial independence
   Commitment by the three branches of the State
   Participation of civil society
   Establishment of priority consensus reforms
   Standardized monitoring and reporting tool
Judicial Independence: An Isolated Phenomenon?

 • Recurrent Themes
     Corruption
     Effectiveness
       – “I won, but I did not collect” (Brazil)


 • Need of a Holistic Strategy

 • Additional Research
     Transparency
     Barriers to the Enforcement of Court Judgments
     Small and Medium Enterprises (SMEs)
How to Increase Transparency?
Research Findings and Lessons Learned

• Transparency reforms are among the most important
  and crosscutting;

• Transparency reforms promote open government and
  increased access to information;

• They enable citizens and reformers to identify
  barriers to reforms, identify priorities and monitor
  progress.
How to Increase Transparency [Cont’d]
Research Findings and Lessons Learned

• The simultaneous promotion of judicial
  transparency and efficient court operations
  includes:

    Reforming court organization
    Publishing judicial decisions
    Reforming criminal procedure codes
    Civil society monitoring
    Disclosure of judges’ income/assets
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                                  IFES Judicial Transparency Index 2000*




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Barriers to the Enforcement of Court Judgments
               and the Rule of Law:
     Highlights from IFES Global Research

  Selected Findings from IFES Enforcement Country
 Papers on Selected Countries [Argentina, Mexico, Peru,
 France] and from Targeted Country Research in Latin
           America [Argentina, Mexico, Peru]


                                            SPRING 2003
IFES Research Methodology
 Review and analysis of existing research;

 Detailled analytical studies of the process and legal
  framework of enforcement in selected countries;

 Specific country research and comparative analysis,
  including the analysis of the political and
  socioeconomic context, interviews of experts,
  surveys of stakeholders and case studies in selected
  Latin American countries.
Key Barriers to the Enforcement of Judgments
and the Rule of Law
 Primary objective:
    Identification and analysis of the barriers to the
     enforcement of judgments in civil and commercial matters
     and of the enforcement of judgments against the State

 Selected key findings:
    Time, cost, corruption and trust are important deterrents
    Clear identification of key causes of delays
    Weak or not fully utilized judicial powers
    Expensive or inaccessible information about the debtor
     and his/her assets
           IFES Enforcement of Civil and Commercial
           Judgments Matrix*
            Lack of effective        Excessive              Lack of               Unclear and             Unclear and         Complexity, time     Complexity, time and
               payment in         abandoned cases        ADR/Negotiation        inadequate legal          inadequate          and cost of the       cost of the auction
                practice                 2                procedures             and regulatory           procedures            attachment               process
                    1                                          1                   framew ork                 1;2                process                     1
                                                                                       1;2                                           1

            Inefficiency of the     Lack of judicial          Lack of          Inadequate training       Supervision of         Incentives of      Judicial inefficiency in
           notification process     Independence         independence of         of enforcement            judges and            judges and          the enforcement
                   1;2;3                  1             enforcement agents           agents               enforcement           enforcement               process
                                                                1                       1                    agents                agents                      3
                                                                                                               2;3                   1

            Time required to       Long procedural      Undue case backlog     High official cost of    Low likelihood of      Court’s bias in        Unw illingness of
           enforce in practice         delays                   1                 enforcement             enforcement           favor of the         judges to enforce
                  1;3                    1;3                                           1;2                     2;3             debtor/creditor           judgments
                                                                                                                                    2;3                       2;3

               Debtor’s           Debtor’s insolvency     Excessive legal          Unclear or              Unclear or        Inability to compel   Access to information
            unw illingness to               1             protection of the        excessive           inadequate right to    the testimony of     about the debtor and
              comply w ith                                     debtor           exemptions from          judicial review         the debtor            his assets
               judgment                                         2;3             seizure (assets)                2;3                   2;3                    2
                    1;3                                                               1;3

              Reliability of          Unclear or           Uniform and         Informal economy         Unclear titles to    Fraudulent transfer   Corporate, bankruptcy
              accessible            overprotective       accessible public       and unreported            property              of assets          and insolvency law s
              information            privacy law s          registers             employment                  1;2                    1;2                      1
                    2                     1;2                  1;2                     1;2

           Effective sanctions     Unw illingness of    Effective sanctions     Systemic judicial      Administrative and     Inadequate anti-      Law yers’ behavior
           for non-compliance      judges to apply       against inefficient      corruption             enforcement           corruption and              2;3
            w ith enforcement      sanctions to the         judges and                2;3              agents’ corruption    punitive measures
                  orders           parties/law yers     enforcement agents                                    2;3                     3
                     3                     2;3                    3


* The numbers correspond to the three categories designed by IFES for purposes of analysis of the data
gathered through its multi-faceted research: (1) Enabling Environment, (2) Transparency, (3) Accountability.
The highlighted boxes represent the topics on which IFES’ report focuses more in-depth.
     Key Barriers to the Enforcement of Civil and
     Commercial Judgments
     Expert Survey Results – Latin America [Arg, Mex, Peru] Fall 2002
      5

      4

      3

      2

      1

      0
             Time and       Excessive      Insolvency of   Unwillingness   Unwillingness
            Procedural     Protection of      Debtors      of Debtors to    of Judges to
              Delays       Debtors and                        Comply          Enforce
                           Use of Legal
                              Delays

* This chart presents only the 5 most important obstacle to the fair and
effective enforcement of civil and commercial judgments as identified by the
experts surveyed. The highest score (5) represents the most important
obstacle.
       Main Reasons for Delays in the Enforcement
       Process
       IFES Argentina and Mexico Case Studies – Fall 2002
       100%
        90%
                                                                                        Argentina            Mexico
        80%
        70%
        60%
        50%
        40%
        30%
        20%
        10%
         0%
              Difficulty in Locating Excessive Caseload   Uncooperativeness Difficulty in Locating Other Problems with
                    the Debtor                            or Resistance of the the Assets of the    the Notification of
                                                                 Debtor             Debtor              the Debtor



* This chart presents only the main reasons for delays in the enforcement
process, as ranked first, second or third by the expert surveyed.
The Cost of Resolving Conflicts for Small
     Businesses: The Case of Peru

Legal Barriers to Micro, Small and Medium
 Business Development and the Costs of
        Access to Justice in Peru

         Prepared for the Inter-American Development Bank
                                             SPRING 2003
 Legal Barriers to the Development of Small and
 Medium Enterprises [SME]: The Case of Peru

 Primary objectives:
    Analisis of the modes of conflict resolution of SMEs and of their
     relationship to the legal framework and judicial system;
    Analysis of the potential economic impact of the lack of access
     to the justice system.


 Selected key findings:
    SMEs avoid the judicial system to resolve their conflicts;
    The lack of confidence in justice leads to inefficient behaviors;
    Increased reliance and trust on the judiciary would increase
     sales and investment.
     Main Reasons for the Failure to Enforce the Laws and
     Regulations Fairly and Effectively – Micro v. Small-
     Medium Businesses
     IFES Analysis of the Peru SME Survey Results – December 2002
                           Small-Medium Businesses              Micro Businesses

     5
     4
     3
     2
     1
     0
             Judicial     Political    Socio-      Political      Lack of        Culture of   Inadequate

            corruption   corruption   economic    instability   political will      non-      legislation

                                      situation                                  compliance
* Results based on the answers to Q17.a of the Peru SME Survey of the 66
businessmen surveyed. The highest score represents the most important reason.
Elementos destacados PYMES

 Distortion regarding delays;

 High perception of systemic corruption;

 Lack of legal services;

 Lack of transparency.
 Conclusions
• Judicial independence issues are closely linked to:
    Judicial transparency and accountability;
    The effective enforcement of court judgments.

• Next stage of research:
    Present lessons learned and best practices.
    Judicial independence:
       – Update data and expand cases analyzed;
       – Deepen the comparative study of key issues
           – Judicial hierarchy; transparency and accoutability of judicial councils;
             relationship between political actors and the justice system; etc.
    Deepen and expand the analysis of the barriers to the
     enforcement of court judgments.
    Analyze phenomena of judicial independence and transparency
     from the prospective of specific groups (SMEs, investors,
     minorities, etc.)
Conclusions (Cont’d)

• Conduct empirical research;

• Several international instruments contain monitoring
  mechanisms:
    Corruption (OECD, OAS), environment, labor.


• Promote a mechanism to develop, collect,
  systematize information related to the judiciaries in
  the Americas.
  A Model State of the Judiciary Report:

 A Strategic Tool for Promoting, Monitoring
and Reporting on Judicial Integrity Reforms



                                SUMMER 2003
IFES Framework for a Model State of the
Judiciary Report
 Tool designed to promote regional harmonization,
  best practices, lessons learned and a more
  competitive efficient reform process across country
  borders;

 Participatory monitoring and reporting tool geared
  towards promoting broad support for and
  understanding of reforms.
 IFES Framework for a Model State of the
 Judiciary Report (Cont’d)
 The framework for a State of the Judiciary Report is
  a standardized flexible tool designed to:

    Promote the implementation of judicial independence,
     judicial accountability and anti-corruption priority
     reforms;
    Encourage the development and dissemination of
     quality information on high priority principles and
     reforms;
    Obtain resources for targeted reforms.
IFES Judicial Integrity Principles
• JIP.1 Guarantee of judicial independence, the right to a fair trial, equality under the law
and access to justice
• JIP.2 Institutional and personal independence
• JIP.3 Jurisdiction of ordinary courts over all judicial issues
• JIP.4 Adequate judicial resources and salaries
• JIP.5 Adequate qualifications, training and continuing legal education
• JIP.6 Security of tenure
• JIP.7 Fair and effective enforcement
• JIP.8 Judicial freedom of expression and association
• JIP.9 Adequate qualifications and objective and transparent selection process
• JIP.10 Objective and transparent judicial career processes
• JIP.11 Objective, transparent, fair and effective disciplinary process
• JIP.12 Limited judicial immunity from civil and criminal suit
• JIP.13 Conflict of interest rules
• JIP.14 Income and asset disclosure
• JIP.15 High standards of judicial conduct
• JIP.16 Objective and transparent court administration and judicial processes
• JIP.17 Judicial access to legal and judicial information
• JIP.18 Public access to legal and judicial information
 JIP.9 Adequate Qualification and Objective
 and Transparent Selection Process
 Selected Indicators: Judicial Selection Process

    Is the judicial selection process transparent?

    Is the judicial selection criteria transparent?

    Is the judicial selection process politicized?

    Are candidates vetted professionally and publicly?

    Are selection criteria and procedures publicized?

    Is the judicial selection process participatory in practice?
Composition of the Judicial Council in Selected
Latin American Countries
IFES Analysis of Summer 2000 USAID/IFES Surveys
               Representative     Representative of   Representative     Representative
               of the Executive   the Legislature     of the Judiciary   of Civil Society
 Argentina
 Bolivia
 Chile                                  No Judicial Council
 Costa Rica
 Dom.Rep.
 El Salvador
 Guatemala
 Honduras
 Panama
 Paraguay
        JIP.14 Income and Asset Disclosure: Argentina*
       • The Argentine Law appears to meet global standards on
         paper:

              Who should disclose: Public officers, elected officials,
               judges, their spouses and minor children.
              Which assets: Income, movable and unmovable assets,
               stocks, cash deposits, credits, liabilities.
              Identification of assets: All assets should be clearly
               identified.
              When to disclose: Disclosure to be done at the
               beginning and end of the term, as well as annually.

* In Argentina, income and asset disclosure is regulated by the Public Ethics Law
(Law #25.188) and regulatory decrees.
JIP.14 Income and Asset Disclosure: Argentina
(Cont’d)
• However, compliance with the law appears questionable in practice,
  at least with regard to the judiciary:

    Enforcing authority:
      – For central administration officials: anti-corruption office;
      – For judges: the Supreme Court;
      – For members of parliament: the presidency of their
         respective chamber.
    Accessibility of the information disclosed:
      – Only publicly accessible for central administration officials;
      – For judges, only accessible at the discretion of the Supreme
         Court.
    Sanctions: Existing sanctions, but it is unclear whether they are
     sufficient or applied in practice.
           Asset and Income Disclosure Obligations in the
           Americas (“yes” in red and “no” in blue)
                             Legal disclosure              Sanctions for             Information            Enforcement in
                             obligation for judges         non-compliance            easily available       practice
           Argentina
           Bolivia
           Brazil
           Canada
           Colombia
           Dom.Rep.
           Ecuador
           Mexico
           Nicaragua
           Panama
           Paraguay
           Peru
           Uruguay
           USA

* This table is based primarily on IFES analysis of country answers to the questionnaire of the Follow-up
Committee of the Inter-American Anti-Corruption Convention and on independent additional research.
Conclusion
    One way to promote the next generation of
       reforms is to implement a standardized
 participatory monitoring and reporting framework
   that simultaneously promotes transparency,
           accountability and public trust:

    AN ANNUAL STATE OF THE JUDICIARY
        REPORT FOR THE AMERICAS

				
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