OFFICE OF PLANNING AND ASSESSMENT
(OFICINA DE PLANIFICACION Y EVALUACION - OPE)
SECRETARIAT OF STATE FOR INTERNATIONAL AND LATIN AMERICAN AID
(SECRETARIA DE ESTADO PARA LA COOPERACION INTERNATIONAL Y PARA IBEROAMERICA --SECIPI)
SPANISH INTERNATIONAL AID AGENCY
(AGENCIA ESPAÑOLA DE COOPERACIÓN INTERNATIONAL - AECI)
HANDBOOK FOR JUDICIAL DIAGNOSIS
María Luisa Ramos Rollón
Sebastián Linares
Leticia Ruiz Rodríguez
DEPARTMENT OF POLITICAL SCIENCE AND ADMINISTRATION
SALAMANCA UNIVERSITY
Preliminary version
March 2004
“Measuring the operation of a judicial system is like entrusting a group of blind persons with the
task of detecting the shape of an elephant by touch: some will say it is tail-shaped, others that it is
trunk-shaped, others that it is foot-shaped, and so on. All will form a partial and distorted notion of
the object” (Luis Ramírez, personal interview).
“The more general point is that one can’t evaluate the parts absent an understanding of the
whole, and that the prevailing lack of agreement on what the whole looks like makes it difficult to
select indicators or to assess their significance.... The host of descriptive statistics may have
greater value as baseline data, once the process is better understood. In the meantime, they are
just so much noise.” (Linn Hammergren, 2002b: 61)
We are still in an artisan phase, in which each attempt at assessment entails the ad hoc
construction of the instrument to be employed (Toharia, 2001).
TABLE OF CONTENTS
1
Introduction
2
Judicial matters: study and intervention
2.1 Democracy, justice and development aid
2.2 Theoretical links between democracy, development and justice
2.3 Judicial reforms in recent times
2.3.1. Historical framework of reform
2.3.2. Waves of judicial reform
2.3.3. The most common criticisms levelled at judicial reform processes
3
Diagnostic instrument for judicial matters
3.1. Theoretical aspects
3.1.1. The need for a multidisciplinary approach
3.1.2. Desirable qualities of a judicial system
3.2. Methodological aspects: methodological layout of the instrument
3.2.1. Dimensions, units of analysis, variables and standards
3.2.2. Measurement: choice of indicators
3.2.3. Measurement: choice of level
3.3. Summary
4
Instrument to diagnose the quality of a judicial system
4.1. Dimension 1: Judicial independence
4.2. Dimension 2: Accountability
4.3. Dimension 3: Control
4.4. Dimension 4: Efficiency/efficacy
4.5. Dimension 5: Access to justice
4.6. Dimension 6: Economic performance of justice: legal certainty
5
Instructions on how to use this handbook
5.1. General comments on the use of this handbook
5.2. Procedure for diagnosis and identification of problems: full and short checklists of
indicators
5.3. Strategy of application of rapid diagnosis
6
References
1
INTRODUCTION
Judicial reform programmes have been an area of political intervention and academic reflexion for
the last twenty years or so. In this time, judicial systems have come to constitute elements central
to political debate, a development that has generated a number of analyses which seek to
approach the phenomenon from different angles and with different tools. Traditionally, judicial
systems have been studied from the standpoint of law, thereby stressing the regulatory aspects
of same, as well as matters linked to the legal framework of each country. Subsequently -and
more clearly so for the last two decades- justice has been incorporated as one of the priority
areas of public intervention in the so-called developing countries, rendering it necessary for it to
be viewed from the stance of scientific disciplines such as political science or sociology, which
have an altogether broader horizon. This shift has implied a more global vision of justice and its
operation.
Justice is a polymorphic public area that affects very different strata of the social, political and
economic life of a country. Indeed it is this that underlies the heterogeneity of the approaches
taken to judicial systems: a complex phenomenon cannot be addressed unidimensionally and
calls instead for approaches underpinned by different perspectives and disciplines. The first
element of complexity resides in the very consideration of what constitutes a judicial system. This
task is by no means easy, in that it embraces both the so-called judiciary as well as all the
collateral institutions which contribute to offering a public justice service. A second element of
complexity arises when the judicial system is approached as a power that contributes to moulding
a country’s political system, with matters relating to its central position in the political structure or
the performance of justice in terms of a public service coming to constitute pivotal aspects. Lastly,
a comprehensive grasp of judicial systems requires that these be viewed from the perspective of
their relationship with citizens, social interaction and society.
International -and specifically Spanish- aid in developing countries has intervened in the field of
justice as part of a commitment to the democratisation of the political systems of incipient
democracies. Such interventions have been affected by the complexity of the phenomenon to be
improved, and also by an initial enthusiasm not always accompanied by sufficient back-up and
support of the kind afforded by scientific knowledge. The inadequacy of this scientific base, plus
the sheer complexity of the matter, is the fundamental reason why the Office of Planning and
Assessment (Oficina de Planificación y Evaluación - OPE), which comes under the Secretariat of
State for International and Latin American Aid (Secretaría de Estado para la Cooperación
International y para Iberoamérica - SECIPI) and works in liaison with the Spanish International
Aid Agency (Agencia Española de Cooperación International - AECI), has commissioned this
paper.1
The aim of this Handbook is to furnish information on the state of scientific knowledge
surrounding judicial systems. More specifically, it seeks to provide tools of analysis for this public
sphere, with emphasis on methodological instruments that might serve to enable the
phenomenon of political reality known as the judicial system, to be approached. Indeed, it aims at
furthering insight into the phenomenon of justice in aid-recipient countries, as well as supplying
The authors of this Handbook form part of a research team that has been analysing judicial reforms in Central
America for the last decade, in the framework of the Political Science and Administration Department and Institute of
Latin American and Portuguese Studies at Salamanca University. Research papers produced by the team include,
“Judicial Policy and the Quality of Democracy in Central America” (“Política de justicia y calidad de la democracia en
Centroamérica”), a project funded by the Ministry of Science and Technology (SEC 2001-1779) and supervised by
María Luisa Ramos Rollón, with the participation of Leopoldo Díaz Moure, Borja Díaz Rivillas, Sebastián Linares,
Elena Martínez Barahona, Leticia Ruiz Rodríguez and Salvador Santiuste Cué.
1
tools that may serve to guide intervention processes. To this end, the criteria drawn up by the
AECI for its political and social interventions and duly placed on record in its “Spanish Aid Project
Management Methodology“ (Metodología de Gestión de Proyectos de la Cooperación Española)
(2001), will be applied.
The layout of this paper is organised in different parts or modules, which in turn contain chapters.
The first part contextualises the processes of judicial reform together with the aid and cooperation provided by European and North American countries for such reforms, indicating the
phases of these processes, the theoretical bases on which they were founded, and the criticisms
that were levelled at them. The second part (Section 3) contains a series of points of a
methodological and conceptual nature that serve to lend the Handbook its framework. Beginning
in Section 4, the third part turns to the development of the Handbook per se, employing a series
of chapters to set out proposals for indicators of comparative diagnosis, identification of problems,
formulation of projects, as well as follow-up and assessment thereof. For this purpose, a
distinction is drawn between six fundamental dimensions in the judiciary (independence,
accountability, control, efficiency, access and legal certainty) and it is around these that the
proposed forms of measurement, assessment and intervention in judicial matters are then
developed.
2
JUDICIAL MATTERS: STUDY AND INTERVENTION
2.1 DEMOCRACY, JUSTICE AND DEVELOPMENT AID
The processes of (re)democratisation which began in Ecuador, Bolivia and Peru in the latter part
of the 1970s, and then spread to the rest of the Latin American region over the course of the
1980s, coinciding with the processes of transition in Southern and Eastern Europe, marked the
starting point of an historical process that has enhanced the idea of democracy as the best form
of political organisation.
Originally, there was a tendency to give precedence to a minimum definition of democracy. Free
and open elections that would lead to the formation of a government, as well as the existence of a
minimum number of individual rights were the two criteria used to characterise a democratic
regime. However, these procedural definitions of democracy left aside aspects of content to focus
simply on formal aspects. Likewise, the emphasis on the political rather than the social part of the
democratic game eliminated any type of concern about the exercise of anything other than certain
aspects of political citizenship. This nigh exclusive attention to the fact of free, fair and open
elections left in abeyance other aspects intrinsic to a democratic playing field, such as the
existence of the Rule of Law, consisting, inter alia, of elements such as access to justice or the
protection of human rights. Hence, although the political definition might lay emphasis on political
institutions, the effectiveness of these institutions, including the judicial system, was not regarded
as central aspect of same (Holston and Caldeira, 1998: 287).
As against this approach, the 1990s saw the discovery of difficulties present in the democratic
game due to the poor performance of its principal institutions. The question of the Rule of Law
and its connections with the transformations of the judiciary gradually revealed themselves, along
with representation of social interests, citizen participation (which in the ultimate analysis affects
accountability mechanisms) and problems associated with violence and organised force (and
their link to civilian-military relations), as three of the major points of friction affecting the
processes of democratic consolidation in the Latin American region (Agüero, 1998).
In recent times, a number of authors have begun to highlight the substantive aspects of a
democratic system , within the context of a generalised complaint that the institutionalisation of a
competitive political game does not automatically lead to the Rule of Law, equitable access to
justice and protection of civil rights. O´Donnell is perhaps the best-known author in this exercise
of insisting on a definition of democracy, which, albeit conceptualised in the political sphere,
needs certain politico-institutional and socio-economic aspects to support it. Other leading
contributions along these same lines include the paper by Agüero and Stark (1998) and that coedited by Diamond, Hartlyn, Linz and Lipset (1999). At the very least, these authors demand a
debate about the degree of quality of democracy, a procedure whereby mere procedural
democracies may be distinguished from substantive democracies. From this point of view, a
study of the judiciary would appear to be central to any study on the quality of democracy.
Two types of concerns about justice are critical here: firstly, a theoretical interest in deciding what
type of judiciary is best for democracy and its consolidation; and secondly, how to achieve it, what
to reform and what to retain. On the basis of these two concerns, judicial systems became one of
the priorities on the political agendas of recently consolidated regimes and the aid policies
pursued by the richest countries (and, by extension, one of the priorities on the socio-political
research agenda). An altogether different matter is whether this priority was more formal than real
or whether governments used it to achieve legitimacy at a given moment in time, since, in reality,
it was of very much less importance than other points on the agenda. At all events, in the last two
decades, reform of judicial systems has become a top-ranking item to which international aid has
accorded priority status in development promotion policies. Institutions, such as official
development-aid agencies in several European countries, including Spain, the United States, the
World Bank and the Inter-American Development Bank (IDB), have prioritised matters of judicial
reform on their agendas, and have fostered and funded different reform initiatives in this sector.
The Spanish International Aid Agency has been especially active insofar as promotion of change
and improvement of judicial systems is concerned, specifically in the Latin American area. This
comes within its fundamental priority of promoting democracy through, among other things,
reinforcing institutions and their performance. Hence, Article 2 of the International Development
Aid Act 23/1998 of 7 July (Ley de Cooperación Internacional para el Desarrollo), states that
“Spanish aid shall act in accordance with the principle of defence and promotion of human rights
and fundamental freedoms, peace, democracy and citizen participation in conditions of equality
between men and women”; and, among the designated priorities of Spanish aid, Article 7
stipulates the strengthening of democratic and social structures, and support for institutions,
particularly those closest to the citizen.
The Spanish International Aid Agency tends to tie promotion of democracy and the Rule of Law to
the general goal of the fight against poverty, on the understanding that there is a close link
between democracy and development (on both the human development and economic growth
fronts). In the framework of such promotion of democracy, the Rule of Law and development, the
judicial system is seen as a key element. Hence, in the strategy of Spanish aid for promotion of
democracy and the Rule of Law, it is expressly stated that “an independent and professional
judiciary is the best instrument for the defence of fundamental rights and for the protection of
citizens against possible arbitrary or unjust actions on the part of the public powers. Moreover it is
also critical for the development of economic activity. For a society to be able to ensure that real
rights are effectively exercised and contracts performed depends on judges being independent
and possessing a sound technical training” (AECI, 2003, p.20).
2.2 THEORETICAL LINKS BETWEEN DEMOCRACY, DEVELOPMENT AND JUSTICE
Until relatively recently, the study of the effective functioning of the judiciary has been a topic that
has not come in for sufficient attention, essentially for reasons of historical timing. In the first
place, the existence of a generalised emphasis on the establishment of political democracy or
polyarchy, which was defended in the first empirical research to be conducted on regimes in
transition, resulted in the study of aspects of the workings of such emerging democracies being
shelved. In the second place, the development of a minimalist concept of democracy, viz., free,
transparent, open, inclusive and periodic elections, along with respect for the rights of voting,
expression, association and access to alternative sources of information (Dahl, 1993), had the
effect of sidelining the actions, performance and quality of the institutions -the judiciary, among
others- that make up these democratic regimes.
Yet the broadening of horizons witnessed over the course of the last ten years in the social
sciences has been translated as an increase in the attention paid to the operation of the judiciary,
its efficacy, degree of transparency and independence, access to justice, respect for human
rights and the overall efficiency of the judicial system as a whole. There are three explanations for
this shift:
I)
The first of these reasons traces its origins to economic theory. Since North’s seminal
paper (1990), the study of the judicial system has assumed a fundamental importance for
comprehension and comparative assessment of state economies. According to this approach, the
institutional factor is the key to understanding the transaction costs between economic agents:
inefficient institutions generate high transaction costs that hold back commerce and the
specialisation of the economy; efficient institutions, in contrast, reduce transaction costs, thereby
increasing trade and specialisation. In this regard, the role played by the judiciary is crucial: it is
the organ entrusted with exercising a neutral and impartial function in resolving conflicts of
interest, by guaranteeing that private contracts and agreements will be performed effectively and
that, where this is not the case, the defaulting party will be held accountable.
From this approach it follows that there would be a close relationship between ineffective and
corrupt judicial systems on the one hand, and underdevelopment and economic stagnation on the
other. More specifically, a high degree of independence and transparency of a judiciary that was
stable over time would be linked to a healthy, modern and highly specialised economy. Against
this, high levels of corruption and inefficiently managed public expenditure would be linked to
stagnant economies and low levels of specialisation. Although it should be stressed that, as yet,
North’s theory has not been satisfactorily put to the test empirically (see Messick, 1999), its
theoretical solidity and soundness of argument continues not merely to justify the efforts
expended by international aid agencies in monetary aid for reform of the judicial system, but
also to provide political science with targets for empirical analyses which focus on the judiciary
and judicial institutions in general.2
II)
The second reason lies in the evolution of the theory of democracy per se. Recent
theoretical analyses have indicated that it is impossible to draw up a minimal, sufficient set of
political rights vested with the potential to guarantee an electoral regime, owing to the fact that
this class of rights was created inductively, i.e., such rights were established by reference to the
real impact that an election would suffer, if they were not recognised. Yet this means, therefore,
that there can be no theory which defines a precise frontier between what are termed political
rights (necessary for the existence of an “electoral regime”) and other civil rights. The reason for
this is that political rights (expression, association and movement) are segments of wider civil
rights (O’Donnell, 2001). What this amounts to, is that the rights of electing and being elected can
seldom be put in practice if individuals lack the requisite capacities for human development or are
unable to exercise their basic universal rights (Habermas, cited by O’Donnell, 2001). In other
words, not only does the limitation of freedom of expression, association or movement restrict or
hamper the existence of a democratic regime, but lack of access to justice, health and education,
as well as poverty and social inequality, severely restrict the exercise of political rights.3
Consequently, the continued existence of a democracy presupposes, in certain measure, the
effective protection of fundamental human rights. It is thus essential to go beyond the definition of
polyarchy in order to attend to the other elements of the political system. Among these other
elements, the judicial system is of vital importance, given that it is through it that rights which are
violated or disregarded, are rendered effective.
In this regard, see Castelar Pinhero, 2001.
This idea is taken from O´Donnell (2002), and what it means is that democratic regimes, Rule of Law and human
development have common bases. This common base is attributable to the fact that civil, political and social rights,
though analytically distinguishable, are mutually presupposed in practice, so that any advance in one area renders it
possible for other rights to be attained. Human development, human rights and democracy share a common, morally
rooted vision of human agency.
2
3
Other approaches have highlighted the fact that the minimum requirements which define a
political democracy or “polyarchy” are necessary to distinguish between democratic and
undemocratic regimes, but not to distinguish variations “between political democracies” (Altman
and Pérez Liñan, 2001). Suffice it to observe the realities of many underdeveloped countries and
compare these with the situation in which the most advanced western democracies live.4
On the basis of these findings, some academics have proposed incorporating the dimensions that
define a Rule of Law into the concept of democracy (O´Donnell, 1999). Together with the
electoral regime (with all its attributes, viz., open, and even egalitarian, transparent, free and
institutionalised elections) and recognition of so-called political rights (freedom of association,
freedom of expression, freedom of religion, the right to have access to alternative sources of
information), account would have to be taken of other attributes, such as judicial independence,
effectiveness of horizontal accountability mechanisms, access to justice and the efficacy of the
judicial system. However, it should be pointed out here that, as yet, no theoretical consensus has
been reached in the literature as to which constituent components of a Rule of Law should be
assessed. Indeed, this dissension is mirrored in many of the recent empirical analyses, where
comparisons between systems are made difficult when the dimensions envisaged by conclusions
in some cases are different to those envisaged in others.
Other authors, such as Coppedge (2002), propose redefining the concept of democracy, by
dividing the notion of inclusiveness (which in the classic term “polyarchy” refers exclusively to the
right to vote) into two dimensions, namely, the proportion of subjects who possess a given right
(breadth of inclusion), and the degree of effectiveness of said right (fullness of inclusion).5 On the
basis of this conceptual approach, political participation would involve, not only the right to vote
as exercised in elections, but also other rights in the form of access to justice, public health,
participation in local public hearings, opportunity to hold collective protest demonstrations, etc.,
(Coppedge, 2002: 9). Accordingly, under this tentative conceptualisation, measurement of access
to justice as a possible component of a democratic regime would assume special relevance.
It would seem evident then that all these approaches to democratic theory suggest measuring
aspects not included in the classic concept of polyarchy, whether through the “conceptual
stretching” of same (that is to say, by incorporation of new attributes), or through measurement of
other different concepts. In this respect, therefore, some dimensions specific to judicial systems
take on relevance.
III)
A third theoretical approach, which underscores the importance of the measurement of
judicial systems, derives from some applications of the theory of rational choice to the study of
the political system. According to this approach, the judiciary is the guarantor of the rules of play
or “guardian of promises” (Garapon, 1996). Indeed, the Rule of Law will operate only if rulers and
ruled both perceive that there are advantages to be had from obeying the law. In other words, the
rule of law will be successful if it manages to impose itself (Smulovitz, 2002).
What is it that causes political leaders to consider that obeying the law is in their own interest?
The answer is that the rulers will have incentives to obey the law if they obtain benefits by doing
Political democracies having high per capita income levels, generalised access to health, justice and social security,
low conflictivity, and respect for human rights, live cheek by jowl with others having low per capita income levels, high
infant mortality rates, low productivity, economic recession, low political participation, high levels of conflictivity and
systematic human rights violations by the state authorities.
5 Moreover, Coppedge proposes adding a further two dimensions: “capacity to govern”, namely, the fact that elected
officials are not subjected to any type of veto by unelected authorities; and, “division of powers” (in accordance with
the conceptualisation proposed by Lijphart, 1999).
4
so and if unlawful conduct is punished; or, put another way, if the law is to be respected, then
breaking it must be costly. In connection with this line of argument, mention has been made of a
number of mechanisms able to render unlawful conduct costly. Identification of these is an
important step because, to a certain extent, the survival of institutions depends on their
effectiveness. All of these mechanisms discourage unlawful conduct, and generate incentives to
achieve a set of self-sustaining rules of play which are capable in practice of generating collective
benefits:6
1. A system of checks and balances which exercises horizontal control of governmental actions,
discouraging any violation of laws and individual rights (Madison 1787; contemporarily,
O´Donnell, 2000).
2. Elections that allow for vertical control of the actions of the rulers.
3. Mechanisms of social accountability, consisting of actions undertaken by actors with different
degrees of organisation, who see themselves as legitimate petitioners of rights (Smulovitz, 2002).
4. The existence of an independent and effective judiciary that holds lawbreakers accountable
and ensures the continued existence of the institutions.
Source: In-house
Yet, of all of these, the centre of attention focuses on the judiciary, inasmuch as it is the body
tasked by law and vested with coercive power to apply the law impartially. These brief arguments
once again justify, albeit from different theoretical bases, the relevance of addressing assessment
and measurement of the respective dimensions of judicial systems.
2.3 JUDICIAL REFORMS IN RECENT TIMES
2.3.1. Historical framework of reform
Judicial reform programmes are a novel area, the product of the last twenty years (Hammergren,
2002c: 44). In reality, if one were to incorporate the movement commonly known as “Law and
Development”, which originally consisted of improving legal education in Latin America and which
proved to be more ambitious in terms of its purposes (social reform through the adoption of new
laws), the history of judicial reform programmes could be traced back as far as forty years
(commencing in 1960).
Hence, the history of judicial reforms is relatively short, and indeed shorter still, since, in the form
in which it is currently conceived, it could be said to have been included in the Third World
development agenda as from the early 1980s. Two events played a key role in its rise:
1) the re-democratisation of Latin America, where the movement began; and,
2) the shift towards market economies in the former Soviet Union and Eastern Europe.
With the advent of democracy, concerns about justice have heightened, not merely for strictly
academic reasons, such as those outlined above, but also because of a series of events that
have been developing in both the “new” (Latin America) and better-consolidated democratic
regimes (Europe, USA) (Domingo, 2003). These are:
Although some of the mechanisms cited tend to display drawbacks when it comes to implementation of same (for
this, see Smulovitz, 2002). In addition, there is the fact that not all possess the same degree of efficacy.
6
1. Globalisation of the human rights debate: This has led to a keener awareness of the
importance of human rights on the part of citizens (even of “potential” citizens, such
as might be the case in still incomplete democracies) (see essays in Dezalay and
Garth, 2002). A new civic legal culture of claiming rights has thus been generated
(Toharia, 2002, Smulovitz, 2002). In Latin America, the rediscovery of human rights
and legal channels for securing justice first arose with the matter of human rights
violations committed under military dictatorships. The outcome of this matter has
been the subject of much debate, as have the consequences that the resolution of
the issue might have vis-à-vis the prospects of strengthening a credible democratic
Rule of Law (Garretón, 1994; Méndez 1997; Nino, 1996; McAdams, 1997; Jelin and
Herschberg, among others).
2. Higher levels of litigation activity: There has been a rise in the levels of litigiousness
in society, partly as a consequence of processes of modernisation and urbanisation,
(Cappelletti, 1989, Toharia 2002). In general, this move by social relationships into
the courts has not been accompanied by a parallel increase in judicial services,
giving rise to problems of congestion and inefficiency in court proceedings which, in
some countries, have reached alarming crisis levels in the administration of justice.
3. Growth of the legal system: Along with modernisation processes and the increased
complexity of the modern State, there has been an increase in the judicial function at
various levels, (Cappelletti, 1989; Toharia, 2002) thereby leading to a multiplicity of
judicial control mechanisms being created within the public administration.
4. Legitimacy and judicialisation of politics: In part, this corresponds to a problem of a
democratic shortfall and a crisis in the legitimacy of the State, (O´Donnell, 1999,
Smulovitz, 2002, Toharia, 2002). It should be stressed here that the incidence of
corruption scandals at high levels of political power appears to have risen in recent
decades, in Latin America and Europe alike, resulting in a greater protagonism of
judges in public life.
1. Legal certainty in economic matters: Concern about the negative impact that a weak
Rule of Law might have on economic growth and the workings of the market has led
international institutions, such as the World Bank and the IDB, to become interested
in the functioning of the judicial branch, particularly in developing countries (Faúndez
1997, Carothers, 1999; Domingo and Sieder, 2001).
2. Public safety and security: Lastly, faced with the rise in the rates of delinquency and
crime, there has been heightened concern about tackling impunity and the weakness
of the State in its remit to ensure the safety and security of its citizens. While the
magnitude of the problem may well not be comparable with the reality of violence
experienced in some Latin American countries and the problems of safety and
security in European countries, it is nevertheless noteworthy that this constitutes a
fairly generalised and politicised topic of public concern (Bailey and Chabat, 2002,
Tedesco, 2000).
These factors have led to the judiciary becoming important at different levels, namely: as the
guardian of legitimacy and legality of political forms by means of constitutional control; as the
protector of citizens’ rights; and as the principal venue for dispute resolution between state and
society, and between the individual members of society. It is, therefore, a political power whose
decisions affect political outcomes, while at the same time reaffirming the dominant values of the
socio-political order (Domingo, 2003).
2.3.2. Waves of judicial reform
It is possible to discern two major waves of reform that have affected judicial power in the Latin
American region to date:
1)
A first wave, corresponding to the 1980s, was characterised by the predominant role of
external aid agents and the implementation of reforms in a disordered and tentative fashion. In
almost all cases, the requirement of conducting a previous diagnosis was dispensed with.
Moreover, in general terms there was an absence, both of an overall strategy, and of a uniform
method of identifying problems, lending technical assistance and performing assessments. The
approach predominantly used was mechanistic, with specific measures being introduced to
resolve concrete problems.
In this first wave, international aid gave priority attention to aspects of infrastructure, such as the
introduction of computers or the construction of premises, which were seen as key elements for
the modernisation of obsolete judicial organisations. Another area to which plentiful resources
were allocated was the training of judges, public prosecutors and public defenders. The policy
pursued by aid agencies in this period shied away from carrying out regular systematic
evaluations of their work. Accordingly, no accurate and complete balance sheet can be drawn up
of resource expenditure on infrastructure and training (Pásara 2003). Due to these shortcomings,
the programmes had contradictory and, in some cases, negative results.
2)
A second wave of reforms, more rigorous in the way it dealt with problems, took place in
the 1990s. For the design of these plans, recourse was had to diagnoses and strategies, and with
these an attempt was made to cover different areas in a systemic manner. The approach used for
diagnosing, designing and evaluating strategies has been synthesised by some experts as the
“technical-institutional approach” (Hammergren, 1998: 5).
This period was characterised by the problem of performance being perceived as the
consequence of a varied range of factors and practices which, rather than being tackled in an
isolated or piecemeal fashion, had to be tackled in a co-ordinated manner en masse.
The reforms did not always enjoy the support of national leaderships capable of lending impetus
to and sustaining the process of change. The results of this second wave have been varied: at
one extreme, entire projects have failed for lack of local roots; at the other, processes that began
with a marked weakness have proved capable of teaming together governmental and nongovernmental actors to yield results of importance. At present, it could be said that in the majority
of countries there is a certain degree of apropiación nacional/national appreciation of the
need for systematic and methodical evaluations of judicial policies. Consequently, despite the fact
that the external agents retain an important role in terms of funding and technical assistance in
reform projects, they are no longer the pivotal figures in same.
Within the framework of these waves, the performance record of international aid in Latin America
has been ambivalent. On the one hand, it has been the driving force behind a number of
processes of change that have been embarked upon in the region. In some cases, without the
initiative of the international actor, the reform would in all likelihood never have been attempted
or, if it had been set in motion, it would have stopped short at the first sign of resistance. Hence,
international aid has instigated and financed a good part of these reform efforts, where the
political and institutional elites lacked the necessary initiative or were unwilling to pay for them.
Yet at the same time, aid and co-operation efforts have also been shown to have committed
errors of no little significance: from forcing projects to commence when the conditions for same
were wanting, to transplanting designs and formulae with little potential for acclimatisation in the
respective national settings, wasting resources without previous diagnoses or a clear strategy,
and even something akin to imposing loans in cases where the amounts involved were difficult for
an already indebted State to absorb (Pásara, 2003: 9). From a strategic point of view, aid has
been a fundamental engine of change; from a technical standpoint, in contrast, it has also
committed blunders and, on occasion, has recorded failures.
Arguably it is this last-mentioned standpoint which calls for greatest attention and at which this
Handbook is essentially directed. The current technical situation in matters of diagnosis, design of
viable strategies, programme implementation and assessment continues to be wanting. Whereas
institutional reforms in other areas already include defined strategies, judicial programmes have
still to define the lines of debate (Hammergren, 2002c: 44). Very little progress has been made in
the design of objective guidelines of evaluation, causal links, sequence and co-ordination of
inputs, success indicators and impact assessment rules. Save notable exceptions, there is no
tally of successful experiences versus those that have met with failure. As a consequence, the
knowledge used in reforms is exceedingly particularised and contextual, and depends
enormously on the identity of their promoters. In general, over the last twenty years, what a
country has defined as its problems and felt to be the right remedy for their solution, has dictated
the substance of the reforms.
As a result of these shortcomings, it is very common to encounter actors who propose reforms
that have repeatedly failed in other countries, who diagnose situations as being highly
problematic when, from a comparative point of view, they do not rate quite so low, or who
disregard problems which, under these common standards, ought to be considered worthy of
attention (Hammergren, 2002).
Similarly, as a result of this same lack of general knowledge, a certain inertia is to be found in
reform programmes. A species of routine has developed, whereby reform is viewed as an
invariable mix of training courses, administrative restructuring, changes in the law,
computerisation, setting-up of alternative dispute-resolution mechanisms, as well as the
introduction of subsidised legal services. Although one may not be sure that judicial training
courses are capable of achieving good or poor results, it is always easier to draw up a
programme in which such courses are envisaged than to omit them. In other cases, elements are
added for the sole reason that they are popular, i.e., judges always want better laws,
infrastructures, salaries and technology. There will always be a justification for supplying these,
even though such elements go no way to solving the problems that presumably have to be
addressed.
Many of these shortcomings are, with the limitations that will be explained below, rooted in the
absence of a systematic effort to facilitate comparison in judicial matters. The methodological
work done by Hammergren (2000) and the instrument designed by the American Bar Association
and Central and Eastern Europe Legal Institute (ABA/CEELI) to evaluate Eastern European
judicial systems, have together laid the foundations for the beginning of this type of comparative
effort. On the basis of this work, albeit not exclusively, the present instrument was drawn up to
help the Spanish International Aid Agency in its tasks of diagnosis, strategy design, programme
monitoring and assessment in the judicial sphere. Before embarking on a detailed explanation,
however, a small digression is called for to address some questions relating to an appreciation of
the ideal, scientific and practical value of same.
2.3.3. The most common criticisms levelled at judicial reform processes
After over twenty years of efforts devoted to drawing up programmes in judicial matters, it is
necessary to discuss three criticisms which tend to be levelled at reform programmes, particularly
in cases where the latter are promoted by external agencies:
1)
such reform programmes are not based on knowledge accumulated through past
experience;
2) they do not take into account the cultural traits of each country, offering instead
superficial diagnoses or solutions which are extrapolated from other cultures and
which thus prove impracticable or have undesirable consequences applied in a
different context (this criticism is usually dubbed “ethnocentrism”); and,
3) they do not enjoy legitimacy within the context in which they are applied, very often
lacking the support of national or local leaders.
The first two criticisms, which pose the problem of the knowledge required for reforms and the
alleged ethnocentrism of same, have become the most incisive criticisms levelled at reform
programmes. The third, less intense –but no less meaningful as a result- concerns the problem of
control of the context, that is to say, the search for the necessary support to implement projects.
While the first criticism refers to matters of a scientific nature, the remaining two refer to political
aspects of the reform process.
Problem No.1. How to produce the knowledge required to draw up judicial reform programmes?
In the literature dealing with law reform, criticisms such as the following are not difficult to find:
“Still, it is not uncommon to find that even programs sponsored by the same donor appear
completely uninformed by that donor’s work elsewhere, adopting measures that have already
demonstrated unsatisfactory results or investing in the redevelopment of already successful
mechanisms” (Hammergren, 1998: 10). Furthermore, these types of criticisms tend to be
accompanied by recommendations, such as, “The challenge is not to find a fail-safe formula for
reform…It is instead to continue to test relationships to arrive at more effective and efficient
means for making discrete improvements” (Hammergren, 1998: 11).
There are two fundamental problems in connection with the generation of knowledge.
On the one hand, scientific knowledge, as has been pointed out above, requires a series of
rigorous standards that are not always compatible with the characteristics of political intervention,
beset by the need to offer swift and effective solutions to the problems of citizens.
In view of the points made above, it has to be said that it is unlikely that the knowledge required
for intervening socially and politically would meet the requirements of scientific research
(generalisable, parsimonious and empirically verifiable). In contrast, if knowledge of reality were
to adhere to the requirements of scientific research, it would probably be very difficult to establish
simple relationships between cause and effect. The ultimate purpose of knowledge geared to
intervention is different to that of scientific knowledge.
This fundamental difference is more clearly perceived when predictions are made. Scientific
predictions are couched in the following manner: “if x occurs at time t, then y will occur at time t´
with a probability of p”. In contrast, a typical planning prediction is: “if y must be achieved at time
t´ with a probability of p, then x must be done at time t”. The technologist indicates the necessary
means, and his forecast establishes a means-goal relationship, rather than the kind of causeeffect relationship peculiar to scientific knowledge. The scientific prediction states what will or
could occur, if certain given circumstances are fulfilled: the planning prediction suggests how to
influence circumstances so as to be able to produce or prevent certain events, where one thing or
another would not otherwise automatically occur.
Example:
It is frequently heard that there is a cause-effect relationship between heavy workloads and
poor judicial performance. Let us assume that this hypothesis has not been refuted by the
facts, i.e., that it is verified in all or, at least, in almost all cases in which a heavy workload
exists. Knowledge of this link will then reveal that a fundamental factor which affects the
performance of judges is excess workload, but it will nevertheless say nothing about what
must be done to reduce that load, namely, whether to increase the number of judges,
render access to justice more difficult, create alternative dispute-resolution mechanisms,
modernise procedures, introduce internal control systems, impart intensive training
courses, or implement some of these reforms or all of them at once.
Hence, a rule of thumb such as that stated above may become grounds on which to
predicate one or more norms of action, but will not reveal the most effective norm, since,
as can likewise be observed from the example, there may well be multiple possibilities for
action. This being so, if neither the norm nor its effectiveness can be established on the
basis of the relevant statement, what can be said of the opposite procedure? From a norm
nothing can be inferred as to the truth of the underlying hypothesis. A norm alone is
capable of pointing to possible relevant cause-effect relationships, and of posing the
problem of discovering the relationship between them.
The second problem relates to the ability to generate knowledge in judicial matters which is
generalisable, both insofar as it refers to an explanation of the problems and insofar as it refers to
a solution to same. The question that immediately arises is the following: is it possible to acquire
general knowledge as to the effectiveness of reforms? Can the results of each and every
measure adopted in the different countries be compared in order to establish causal relationships
that are generalisable to all cases? Given that the area of judicial policy is so complex, with a
multiplicity of possible interventions confronting a very broad spectrum of problems and with a
very wide range of external influences, how then can such general knowledge be attained?
One is faced with a tension between the need to establish generalisations that allow for
comparison between countries (with regard both to the explanations to their problems and to the
effectiveness of their proposals) and the pertinence of conducting case studies that adequately
register and reflect the particularities of each country. Reality in judicial matters may be diverse,
but we are convinced that it can be expressed in a common language. Comparison is not a
property of phenomena but of language, that is to say, it depends on the level of generality used
to express observations.7
7
See Przeworski and Teune for a clear discussion of these assumptions (Przeworski and Teune, 1970: Introduction)
Let us turn to an example:
Faced with the need to establish links between means and results, we wish to ascertain the
influence of a series of factors on the duration of court cases. After statistical research, we
find that in the Lower Civil Courts of a given country, 99.9% of the variance in the variable
“duration of court cases” is accounted for by the following factors: a) level of legal training;
b) existence of modern administrative procedures; and, c) salary levels. In another country,
on the other hand, we find that 99.9% of the variance is accounted for by the following
factors: d) existence of internal controls in the administration of cases; e) a depoliticised
system of judicial appointment; and, b) existence of modern administrative procedures.
Lastly, let us suppose that the factor common to both explanations, namely, factor b), is
unable to explain more than 40% of the variance in both cases. What general knowledge
can be obtained from these two cases? The only generalisation that can be made is that, in
both countries, the existence of modern administrative procedures has a certain probability
of influencing the duration of cases. Yet this lone proposition is only of limited use for
drawing up a reform programme, inasmuch as it does not ensure the maximum likelihood
of success. Indeed, to a sponsor of reform, it would be of interest to know each and every
factor that determines the greatest likelihood of success in each country, and as the
example shows, the factors that exert influence tend to differ from country to country. It
could be said, therefore, that, while the knowledge which we possess about the influence of
administrative procedures on the duration of court cases is essential to explain the
respective duration of court cases in each of the countries, on its own it is nevertheless not
enough to determine such duration. For this, we should have to consider other factors that
are not in evidence in all the cases, or that have not, until now, been perceived as being
relevant.
In brief, these ideas may be summarised as follows:
1) to propose reforms with certain guarantees of success implies having specific and precise
knowledge of the factors that influence each case; and,
2) accumulated knowledge about any given reform allows for the creation of a general body of
knowledge as to the effectiveness of same, though characterised by its lack of definition
(greater or lesser, depending upon the case) and precision.
However, it is one thing to assume these types of limitations with humility and quite another to
renounce all comparative ventures based on the scientific method. The search for general
knowledge, based on studies of a scientific nature, is useful for reform insofar as it determines the
limits of the possible, but it will never resolve the problem of what can really be done, nor will it
inform the needs and opportunity criteria of what must be offered. It has the usefulness –and that
is already saying a great deal– of reducing the framework of uncertainty, both as regards the
most effective strategy and as regards knowledge of the cause-effect relationships on which this
rests.
Problem No. 2. How to overcome the alleged ethnocentrism of judicial reform programmes?
This criticism can be summed up in the idea that actions which proved effective in one country,
do not necessarily prove effective in another. What is more, the reforms implemented in the most
advanced countries tend to address other (generally less serious) problems and, at the same
time, exogenous factors intervene which increase the likelihood of success of same (generally,
factors associated with economic development). In this vein, it is argued that the problems in less
developed countries are different, and that factors linked to economic development tend to be
absent or that another class of factors interferes. It is thus easy to arrive at the hasty and
superficial conclusion that what is good for some, is not good for others.
Usually, this criticism is reasonable. It is not enough to state that a programme is desirable and
should be implemented because it works effectively in developed countries. Unless matters
relating to basic human rights are implicated (which could render any evaluation of the de facto
viability of a project absurd), it is advisable, first, to diagnose the concrete problems of each
country, seek the support of the strategic actors, estimate the viability of the projects in line with
the number of intervening factors, and be sensitive to the cultural values of the society in which
one is engaged. The envisaging of all these elements calls for specific knowledge that will rarely
lead to the implementation of identical and uniform programmes. Experience indicates -in Latin
America, at least- that many programmes have certainly committed this type of error. Accordingly,
we feel that we would not be wrong in saying that implementation of the selfsame programmes in
different contexts, without adequate diagnoses as to what the specific problems are, and without
estimates regarding the more viable strategies, will inevitably lead to different results in each
setting.
Problem no. 3: How to control the context of reform?: support and resistance in the
implementation of programmes
Judicial reforms are political reforms in the sense that they deal with assigning values in respect
of who gets what, when and how (Hammergren, 1998:9). All judicial reforms, no matter how
small, alter the way in which power is distributed between the State and citizens, between
branches of government and, by extension, between the political forces in any given society
(Vargas Vianco, 2001: 11). To give an example, a reform as profound as the changeover from a
inquisitorial procedural system to one that is more accusatorial implies the recognition of certain
civil rights vis-à-vis the State which were previously not recognised and, as a result, place certain
restrictions on state action. Furthermore, it entails the assignment of functions –which were
previously performed by the judiciary– to other organs (e.g., Public Ministry). Hence, no
programme is politically neutral –and it is natural that it should not be- because “on targeting one
of the institutional axes of the State, it endeavours to change a state of affairs that is related to
the unequal distribution of power” (Pásara, 2003: 8).
Any reform programme gives rise to winners and losers, and it is normal, therefore, that such
programmes enjoy support and/or meet with opposition. Judicial reforms have altruistic aims, but
they also give rise to opportunities to do business and achieve political ends. Consequently, they
always go hand-in-hand with fiercely fought battles of interests; and it is precisely the inevitable
existence of such conflicts that is one of the main reasons why programmes have been less
technically driven than the planners might desire (Hammergren, 1998: 10), and why some
projects fall by the wayside despite being technically well founded.8
In addition to sound diagnosis and good technical design, the viability of a project thus requires
the support of many strategic actors. It is no coincidence that many of the failures registered by
programmes implemented in recent times have been said to be due to the error of not
considering judges, public prosecutors and litigation lawyers as protagonists of the process
(Pásara, 2003: 6). Arguably, this is the most difficult error to avoid, given that operators of the
Neither does the opposite yield good results: programmes which have had greatest local support (better wages,
better facilities, bigger budget) but which have been poorly designed technically, have not had positive results, and
on occasion have actually made matters worse (Hammergren, 1998: 5)
8
system are at once the product and cause of its evils, as well as the actors to whom a leading
role must be given if such evils are to be remedied. Experience gained in Latin America in this
respect is enlightening: top-down changes have met with opposition –inertial or organised- which
has soon come to constitute a formidable obstacle lying in the path of transformation (Pásara,
2003:6). In this connection, the main resistance can be said to come from lawyers and civil
servants of the system, since it is within the context of current judicial practices that they find their
professional lifestyle, including petty corruption of all types. Aside from these interests, there is
also the threat to the major interests –economic or political– that are protected under the present
status quo. Consequently, at the political level too, reform programmes are confronted by
detractors and enemies, often powerful, well-organised and well-funded.
This said, it should be pointed out that the tool proposed in this handbook will in no case ever
furnish sufficient knowledge of the risks and appropriate on-site conditions for the purpose of
implementing of a programme. This type of knowledge is contextual and can only be achieved at
a national level in the course of specific interventions. What can be done, however, is to describe
the experience of aid and co-operation in this regard, and the tentative lessons to be drawn
therefrom. This then will be our ultimate aim.
3. DIAGNOSTIC INSTRUMENT FOR JUDICIAL MATTERS
3.1. THEORETICAL ASPECTS
3.1.1. THE NEED FOR A MULTIDISCIPLINARY APPROACH
Many of the shortcomings in the approach to the study of judicial systems are ascribable to the
absence of systematic and multidisciplinary efforts to facilitate comparison. Matters relating to
justice have traditionally been studied from within the Law and, thus, from an eminently legal
point of view. This approach has accorded priority to topics relating to the internal organisation of
the judiciary and its relationship with other powers, with the overall intention being descriptive. As
a result, the effective workings of the judiciary and its role in the general political system have,
until recently, been the exclusive preserve of professionals active in the field of justice, and have
seldom been addressed by other disciplines.
Recently, currents of analysis have been generated which, from a multidisciplinary stance, seek
to analyse justice empirically across several dimensions, viz., access to justice, efficacy and
efficiency, accountability and judicial independence (Prillaman, 2000). The centre of attention of
these analyses is focused not only on the formal structures, but also on the effective operation of
same. This widens the number of disciplines -political science, economics and sociology, among
others- which, in addition to the Law, consider the study of the institution of justice to be relevant.
Viewed from this multidisciplinary option, assessment of judicial systems, rather than confining
itself solely to the traditional "judiciary", must also address administration of justice, auxiliary
organs of justice (Public Ministry, public defence), the prison system, judicial councils, legal
professions (lawyers), non-expert users (parties to a lawsuit), as well as the general public. In
other words, analysis of the judiciary has been broadened to include the judicial system as a
whole. Thus conceived, the exercise of justice fits in with a multidimensional view of the State as
a set or system of institutions.
With this shift in the study of justice, the latter is no longer addressed exclusively as a power
which, in the framework of its relationship with other (i.e., the legislative and executive) branches,
has to concern itself with delimiting and maintaining its own boundaries. Neither is it a topic
coming solely and exclusively within the ambit of the theoretical and practical concern of the
professionals active in the area. Inasmuch as there has been a significant increase in the number
of people who are affected by the dispensation of justice, the judicial system has come to be
viewed as a function of the State, subject to being analysed on the same terms and by the same
professionals who study and analyse the different institutions of state. On these premises, the
independence of the judiciary is not important as an end in itself but rather as a means of
guaranteeing impartiality. In this respect, judicial independence cannot be used as an excuse to
exempt it from the obligation to account for its actions and answer for unlawful conduct.1 In other
words, the question of justice as a public service comes to occupy a pre-eminent position, in
which the focus of attention ceases to be the judicial professional (basically the judge), and is
instead trained on the citizen-user who acquires great protagonism.
1Toharia (2002) reflects on the independent spiral, by virtue of which independence of action (that fact that a judge
may settle a dispute free of improper interference) becomes structural independence (the set of formal safeguards
and structural conditions that protects judges and the judiciary from any type of intervention or control). Taken to the
extreme, the desire to “armour-plate” independence of action with structural guarantees could place the judiciary in a
kind of institutional limbo, beyond all control, whereby, rather than being independent, it would ultimately be
irresponsible. Such a distorted conception of independence would lead to a situation in which, without any obligation
to be accountable, only justice could recruit, organise, govern, evaluate or punish the judiciary.
With this notion of the judicial system as a public service, approaches that take evaluations of the
system’s day-to-day functioning as their subject of interest, and studies that investigate how to
improve it and what measures to take for the purpose, acquire sense. In order to adopt any
measure, it is first necessary to diagnose the problems, which in this case entails assessing how
the judicial system operates, phases that are inevitably involved in the design of any public policy.
Studies on judicial reform, inasmuch as they form part of public policy, are pertinent basically
from this view of justice (Pastor, 1993). This paper applies the methodology of public policy
analysis to the analysis of judicial systems.
Consequently, the judicial system is regarded as a set of institutions that have relevance, not only
as a political power, but also when regarded as a public service. Seen from the former stance,
questions relating to the relationship between powers assume special relevance (the
independence of each, the accountability of some to others or horizontal accountability, and
political control as between the respective branches). From this point of view, attention is directed
to matters relating to effectiveness in the performance of the public service to which citizens have
a right per se (efficiency, efficacy and access to justice).
In turn, and departing once again from this notion of the system, justice has an obvious direct
impact, not only on the quality of the democratic system of which it is part (inasmuch as it is a
political power), but also on the welfare of its citizens and the economic development of the
country. The paper focuses on both planes, so that more precise assessments will be made of
each in terms of the impact had by a judicial system.
3.1.2. DESIRABLE QUALITIES OF A JUDICIAL SYSTEM
On the basis of the proposed multidisciplinary view, assessment of a judicial system implies
identifying the ideal model of justice, i.e., the desirable attributes that it should possess.
At their inception, the first wave of reforms of judicial systems set out to overcome two major
challenges, namely, quality democracies (with special emphasis on respect for the rights of
citizens) and economic development.
1. Respect for the rights of citizens: this comprises not only (and needless to say) human
rights, but also political and social rights, such as the right to physical integrity, private
property, privacy, etc., which assumes material form in the certainty bestowed by the Rule of
Law. Much has been written about this but, by way of summary, it could be said that, in order
for the law to prevail, there may be no forms of dispensing justice other than those envisaged
by law, nobody may be excluded from this right, and there may be no persons or groups with
different possibilities with respect to the law. In other words, justice must be both impartial, in
the sense that no citizen may enjoy a situation of advantage, and accessible, in the sense
that all citizens may enjoy access to the services afforded by justice without any bar or
impediment whatsoever.
2. Democracy and political stability: democracy is an end in itself. Moreover, it contributes to
guaranteeing the two goals indicated above. In this case, for democracy to work and be of a
certain quality, it is essential that the division and balance of powers, and citizen participation
therein be effective. This premise assumes concrete form in the need for such powers to
exercise mutual control and be subject to supervision. Hence, it refers to the need for
transparency of the judiciary and its effectiveness in controlling the remaining powers.
3. Economic development: a system requires an additional series of conditions to foster and
ensure the economic wellbeing of its population, both in terms of economic growth and in
terms of reducing social inequality, and indeed, all objectives geared to ameliorating poverty.
In this context, the judicial system must provide legal certainty to ensure effectiveness in
controlling crime and criminal offences, and efficiency in performing its functions well.
For these goals, the smooth operation of justice is an indispensable requirement. Hence, the
need for the definition of desirable qualities to be those characteristics of the judicial system
which impact upon the quality of democracy and economic development of countries. In view of
these challenges, the attributes or qualities that we deem necessary for a judicial system are:
1. Impartiality/independence vis-à-vis other powers: above all, the judiciary must be
impartial, that is to say, it must judge, not prejudge, and all citizens must have the same
opportunities. This will be hampered if the power wielded is not independent, so that the
independence of judges to perform their allotted tasks is a necessary -though not a
sufficient- prerequisite for such impartiality.
2. Generalised access to justice on the part of the population: impediments barring access
to justice are yet another form of social and political exclusion. The obstacles are not
solely economic, but also cultural and/or gender-based.
3. Accountability of the judiciary: the judicial system, like any public institution providing a
service, must be permeable, in such a way that the citizen body is able to participate and
control its actions. The judiciary has traditionally been impermeable, but efforts aimed at
rendering public administration transparent must include the judicial system.
4. Control exercised by the judiciary over other powers: the judicial system, in turn, plays a
key role in combating one of the blights of democratic systems, viz., corruption. To the
extent that the judiciary is independent, reliable, swift, efficient and transparent, it will be
able to act as the guardian of good governance.
5. Efficacy/efficiency: justice works if it proves effective in controlling crime, both petty and
serious, and ensuring citizens’ personal safety and security. Here, different objectives
contribute to enhancing such effectiveness. Speed and efficiency embody efforts to
achieve efficacy.
6. Legal certainty: the relationship between citizens, including that of an economic and
commercial nature, is only possible where there is a minimal threshold of legal certainty.
This is attained through legal stability, confidence in the institutions (including judicial
institutions) and the predictability of judicial decisions.
The layout of this paper is based on this breakdown of the attributes of a quality judicial system.
Each of these attributes will now be discussed in greater detail below.
3.2. METHODOLOGICAL ASPECTS: METHODOLOGICAL LAYOUT OF THE INSTRUMENT
As its point of reference, this Handbook takes the methodological aid-action-management criteria
drawn up by the Agency to ensure that its interventions adhere to a certain logic based on
common planning. Respecting the phases of action defined in the Guía para la Gestión de
Proyectos (Project Management Guide), the pages that follow therefore raise points which serve
to furnish tools of diagnosis.
In this section, an attempt will be made to explain the process which flows from considering
justice in the terms described above, and which is basically defined on the basis of six attributes
or dimensions of same, until arriving at the reality forming the subject of this study. To this end,
identification of dimensions, units of analysis, variables, indicators, units of measurement and
sources will be the theoretical tools that will help in this process, a process that seeks to bring
ideal attributes closer to concrete realities, or concepts closer to observations. Each of these
concepts represents a level on the scale that links the most abstract to the most concrete.
Vertical organisation by level of abstraction
It is of the essence to bridge the gap between the general level of concepts and the concrete level of
observations (Munck and Verkuilen, 2002: 413). Furthermore, it affects the possibility of
“aggregating” data at a subsequent phase. From a scientific point of view, vertical organisation of
attributes by level of abstraction assumes two conditions:
1) attributes are organised so that the less abstract are immediately subordinated to the more
abstract attributes or dimensions which they endow with content and render operational (the
incorporation of a more concrete within a more general, though different, attribute is known as
superimposition or conflation).
2) attributes at the same level of abstraction must be manifestations of mutually exclusive aspects
of the attribute or dimension found on the immediately superior level of abstraction, otherwise
this gives rise to redundancy.
These conditions are difficult to fulfil, however, because the more general dimensions or attributes
tend to have multiple empirical manifestations that can only be detected by the use of a wide range
of indicators. This also means that some concepts are not directly observable (partly or totally).
Aspects such as efficiency, equity, accountability, transparency, access to justice, judicial
independence, can only be measured using a number of different indicators which are solely
interpreted as observable correlates of the concept in the light of given hypotheses (political science
speaks of indirect or inferential measurement when this type of indirect indicator is referred to).
This circumstance not only accentuates the problem of the validity of measurements, but also
decisively affects the need for the attributes to be “exclusive”.
Let us take an example: How does one interpret the indicator which registers the number of cases
filed in each jurisdiction? Is this an indicator that measures access to justice, workload (a partial
aspect of efficiency), level of social conflictivity, or another concept? It is likely that, in the light of
given hypotheses, this indicator may well serve to interpret each and every one of these concepts.2
3.2.1. DIMENSIONS, UNITS OF ANALYSIS, VARIABLES AND STANDARDS
Beginning at the most abstract level, the instrument described below offers a set of desirable
attributes for all judicial systems. These attributes have descriptive and theoretically ideal
connotations or, what amounts to the same, are predicated on objective facts (empirical or non-
As an example of initiatives that exhibit these same problems, mention should be made of the U.S. system of
measurement of judicial performance (BUREAU OF JUSTICE ASSISTANCE, 1997). In this system, it is possible to
find one and the same indicator being used to measure completely different dimensions (e.g., for the measurement
of dimension no. five –public trust and confidence- recourse is had to indicators that were used to measure
dimensions 1, 3 and 4).
2
empirical)3 and on value judgements. The fact that they may have a theoretical origin is no bar to
measurement or observation thereof.4 To give an example: a concept such as judicial
independence, with strong theoretical connotations, can be measured by transforming the plane
of “must be” to the plane of “be”. What was previously regarded as an imperative (a judiciary must
be independent) is now viewed as a measurable proposition (what degree of independence a
given judiciary enjoys).
Furthermore, this means that concrete measurements of a specific attribute or dimension will
have different consequences depending on the plane to be considered. Viewed from an empirical
plane it will mean that it exists or that it is wanting. Viewed from the theoretical plane, on the other
hand, it will indicate that the status quo is reprehensible, or that measures will have to be taken to
alter the status quo.
Shown in the chart below is the list of attributes or dimensions that correspond to the dimensions
of the concept of quality of the judicial system.5
CONCEPT
Quality of the judicial system
ATTRIBUTES/ DIMENSIONS
Judicial independence
Accountability
Control
Efficacy/Efficiency
Access to justice
Legal certainty
How are the dimensions related to one another?
From a strictly analytical stance, these qualities can coexist. Nevertheless, at this stage nothing is
known of the respective weights of the attributes in the general operation of the system, nor how
they are interrelated.
3 A fact is empirical when it is directly observable, and is objectively non-empirical when, despite not being directly
observable, there are solid reasons –reasons underpinned by scientific theories– to believe that it has a real
existence (Bunge, 1979).
4 This is no different to what happens, say, in the case of the theory of democracy and all existing literature on the
measurement of same (for this literature, see Munck and Verkuilen, 2001).
5 These general dimensions (access to justice, independence, accountability, control, efficacy/efficiency, judicial
certainty) are desirable qualities for all judicial systems. Why have these desirable qualities or attributes been
chosen? The choice is the result of knowledge accumulated via a wide range of theories: economic efficiency and
performance come from economic theory, accountability from democratic theory, and independence and (horizontal)
control from the theory of the Rule of Law. Access to justice, in contrast, has multiple theoretical aspects (theory of
the welfare state, human rights, democracy and public service). To a certain extent, the proposed characterisation of
the dimensions is arbitrary. Categories that other authors consider relevant are omitted, while others that have not
been previously envisaged are added. However, given that conceptualisation is an open-ended exercise which only
has sense in the light of theories, definitions are only liable to evaluation according to the usefulness of the theories
which helped formulate them (Munck and Verkuilen, 2002: 407). In this regard, the characterisation offered fulfils this
minimal requirement, inasmuch as the stipulated qualities have a solid theoretical origin, but, as with any
characterisation, it has its virtues and its limitations. Its greatest potential lies in the fact that the dimensions or
attributes stipulated rest on empirical theories and standards which enjoy a certain tradition in the social sciences
and the law. This imbues the tool with indisputable academic and scientific potential. It greatest limitation is to be
found in the fact that said attributes have a multiplicity of empirical manifestations which affect the measurement
phase and comparative rigour.
Some tentative links can be put forward. Efficiency would appear to act as a necessary, but not
sufficient, condition of efficacy (for example, a judicial decision that recognises a right ten years
after the event will seldom be a quality decision). Some authors maintain that the factors which
affect efficiency do not necessarily make for enhanced protection of human rights (the goal of all
judicial systems), and that in certain cases greater efficiency may even undermine it (Buscaglia and
Dakolias, 1999: 2). A Lower or Magistrate’s Court may be expeditious because it is not
overburdened and uses its resources reasonably, and yet do so by force of dismissals or arbitrary
decisions. In such a case, this court would be efficient because it minimised costs and maximised its
capacity to hear cases, but would nevertheless not be achieving the results implicit in its designated
function.
Much has also been written about the alleged tension between accountability and judicial
independence. As Toharia has pointed out, undue emphasis on independence has led to said
concept being distorted to the point where it no longer seems possible to conceive of the control
which the other powers should exert over the judiciary: that is to say, it would appear incompatible
for a judiciary to be independent of other branches of government (executive, legislative, armed
forces) and at the same time answerable to same, in that, if it does hold itself accountable it is losing
its ability to act with independence. However, if judiciaries were obliged to hold themselves
accountable in terms of widely accepted objective rules and criteria, there would be no margin for
the existence of improper interference and pressures. A judiciary might be perfectly independent
and at the same time give an account of its actions. In the words of Hammergren: “the two
developments are not contradictory; at least in the current environment, more independence seems to require more
accountability, and accountability in some instances can be seen as enhancing independence” (Hammergren,
2001b: 155).
Other contradictions can also be perceived, e.g., that between access to justice and efficiency. Some
authors have stated that these latter concepts may be contradictory (Carothers, 2001), inasmuch as
increasing access to justice could occasion greater congestion in the workload, increased
sluggishness in judicial activity and, by extension, lower efficiency. Moreover, increasing access to
the courts might lengthen delays in what is an already overstretched judicial system (Carothers,
1998:9). These two qualities justify the existence of antagonistic legal and judicial reform
programmes: the former, to lend impetus to the setting-up of alternative dispute-resolution
mechanisms, active legitimation of a broad spectrum of ill-defined legitimate interests, an increase
in public defenders, a reduction in court costs (where charged), administrative recognition of
indigenous languages, and many more; the latter, on the other hand, to foster a reduction in the
population of lawyers, the establishment of oral hearings in judicial proceedings, elimination of
unnecessary procedural stages, penalisation of malicious and unfounded suits, and an overall
reduction in the demand for justice.
Each of the dimensions of the concept of quality of the judicial system, which we have termed
desirable attributes, may be observed in different justice-related actors or institutions. In other
words, each dimension is applied to different units of analysis since, as pointed out above,
justice is conceived as a system made up of different institutions and actors. For instance, in
order to analyse independence, not only must one have regard to different indicators pertaining to
the judiciary (e.g., manner of appointing judges or their salary level), but one also has to study
aspects linked to other actors, such as the Public Ministry (e.g., degree of interference by the
Public Ministry in the actions of judges).
Furthermore, each of these dimensions breaks down into different variables which enable closer
inspection of the reality of the subject under review. These variables are formulations which exist
at a lower level on the scale of abstraction and which the theory and practice of judicial reform
assume as being requisites for the attainment of the general attribute. They are, therefore,
measurable or verifiable with a greater level of specificity than the general attributes –but are not
necessarily comprehensive or mutually exclusive. In other words, though they do not fulfil strictly
scientific criteria, they nevertheless facilitate interpretation of isolated data from a lower level of
abstraction than the dimensions, and are, in addition, good predictors of same.
Along with the variables, a series of standards is set, fulfilment of which entails achievement of
an optimal value for each variable. In this way, each standard constitutes a desirable quality or
situation.
Continuing, in part, with the previous example, the attribute of efficiency may be broken down into
different variables of analysis, through which concrete observation can be made. One of these is the
processing of cases filed, i.e., the way in which cases are managed, handled and processed. The ideal
situation with respect to this variable, or the standard (ideal value which the variable can assume)
would be “Judges have the power to expedite cases and prevent (and penalise) delays”.
Yet exactly how have these variables and their related standards been selected? The choice has
been made on the basis of the accumulated body of knowledge regarding the way in which
judicial systems operate, based in turn on empirical studies, experience afforded by already
implemented reform programmes, hypotheses (verified, not verified and weakly verified), and on
logical and theoretical arguments. At times, therefore, the ties that link some of these variables
with the desired attributes of a judicial system are a priori assumptions, i.e., they are not always
verified.6 While this limitation may well affect the scientific quality of the instrument, it is in no way
alarming, since in social sciences the number of theories and hypotheses that are formulated
exceeds those that are verified.
3.2.2. MEASUREMENT: CHOICE OF INDICATORS
In the context of scientific knowledge, measurement is made on the basis of attributes situated at
the lowest level of abstraction (Munck and Verkuilen, 2002: 416). This implies selecting “valid”
indicators of such attributes, namely, those that adequately reflect the properties targeted for
observation and evaluation. In the case of this particular instrument, we feel that fulfilment or lack
of fulfilment of this requirement can only be ascertained specifically for each attribute and each
country. It will all depend upon: a) the availability and accessibility of data in each country; and b)
the correct interpretation of same:
a) Availability and accessibility of data vary greatly from country to country. In Latin
America a dearth of data and uniform indicators is commonplace. The use of diverse
sources may affect comparability between countries, unless the equivalences between
the data used are expressly specified. This cannot be solved without an effort to promote
uniform collection of data in all countries.7 Some countries possess very advanced
systems of generating, collecting and standardising judicial data, which is both accessible
and reliable, so that the task of assessment will prove easier in such settings, and will
have greater empirical support as well as greater internal validity and reliability. Others,
however, are characterised by the precariousness and lack of reliability of their judicial
For example, there is a tendency to claim that the way in which judges are appointed has a deep impact on their
subsequent conduct; likewise, it is felt that the existence of high administrative fees and charges decisively
discourages access to justice, and that improper intervention by other branches of government into judicial conduct
has undesirable consequences in other domains (less predictability, less investment, less legitimacy of the
institutions). Nevertheless, these beliefs are not backed by empirical studies.
7 Indeed, such an effort has been made by the Justice Studies Center of the Americas (Centro de Estudios de
Justicia de las Américas- CEJA) which has published a Manual to Generate, Compile, Disseminate and Standardise
Judicial Statistics and Indicators (Manual para Generar, Recopilar, Difundir y Homologar Estadísticas e Indicadores
Judiciales).
6
information systems. Here, the job of assessment will be less solid and will have to be
based on subjective evaluations on which to base measurements, thereby increasing the
risk that these may be biased.
b) Correct interpretation of same. The validity of a measurement refers to the fact that a
given indicator measures a concept appropriately. It therefore alludes to the way in which
ideas are related to facts (Collier and Adcock, 1999: 1). Many of the concepts have a
variety of empirical manifestations –thus rendering it necessary to use multiple indicatorsor alternatively, are not directly observable. For these reasons, recourse must be had to
certain rules of inference which, assuming certain hypotheses, allow for concrete
observations to be interpreted as observable correlates of given unobservable concepts
or categories. The problem is that inferences are always weaker than direct
measurements (insofar as validity is concerned), because they have to be interpreted in
probabilistic terms (Przeworski and Teune, 1970: 94). Hence, indirect measurements
may contain greater margins of error.
These methodological problems affect the scientific quality of the measurement tool. However,
the usefulness of same is not in question, since its purpose is not to measure concepts
scientifically to verify hypotheses, but rather to detect problems, venture their causes and
propose solutions to same. If the empirical approach can be conducted rigorously so that it
enables comparative studies to be undertaken, if the effectiveness of a given measure can serve
as support for the creation of rules applicable to other analogous cases, and if the causal
inferences drawn can be used to make generalisations, this enhances the value and usefulness
of the instrument. Yet in the absence of these qualities, the instrument nonetheless remains
considerably valuable for gaining insight into the specific problems confronting countries in
judicial matters, and for programming projects. This does not mean eschewing rigour, but rather
being aware that the complexity of the matter being addressed demands a great methodological
effort.
Before turning to the next point, three tables are shown below, which are useful for understanding
the nature, type and function of the indicators to be used, the data-collection methods, and some
practical questions relating to the choice of indicators.
Indicators are tools that help measure variables or concepts. In a broad sense, an indicator is a
fact or trend that indicates the status or level of something. Accordingly, it is a synonym for
measure, index, mark, sign, standard or point of reference.
CLASSIFICATION OF INDICATORS
TYPE OF
INDICATOR
Objective
By reference to
subject of
measurement
Subjective
By reference to Quantitative
level of
measurement
Qualitative
DESCRIPTION
Observable characteristics and quantifiable phenomena
external to subject’s mentality. Less sensitive to subjective
interpretation bias.
Subjective assessments, perceptions or attitudes (which
may refer to objective facts)
Metric units of measurement: interval or ratio.
Ordinal or dichotomous levels of measurement
External
Selection of indicators made by evaluators external to object
By reference to
of measurement.
by whom and
Internal
Selection of indicators made by actors forming part of object
how selected
to be measured.
Participatory
Selection of indicators made both by evaluators and by
participants to be evaluated or forming part of object to be
measured, through a process of deliberation.
By reference to Input indicator: Measures quantity or quality of resources or inputs provided
stage of
for programme activities.
process
Output indicator Measures quantity or quality of products achieved by inputs.
measured or
Outcome
Measures quantity or quality of direct results achieved by
observable.*
indicator
products.
Impact indicator Measures degree to which broadest programme goals are
achieved by outcomes.
By reference to Direct
Data directly reflect concept.
datainterpretation
Data may only be interpreted as manifestations of the
Indirect
process.
concept on the basis of certain assumed hypotheses. This
(proxy
entails a higher margin of error.
indicators)
RULES FOR SELECTING INDICATORS
A: meaning of indicator is clear.
B: data are easily accessible.
C: data-collection is within reach of programme and does not require experts for analysis
purposes
D: indicator is sufficiently representative of the total of empirical manifestations of the formulation,
i.e., does not need to be completed with other indicators.
E: indicator measures concept directly, i.e., there is no need to resort to other hypotheses to
interpret same.
F: indicator measures concept solely in the light of other assumed hypotheses, but due to its
importance nevertheless merits consideration (indirect or proxy indicators)
Not all interventions are organised in four stages (input, output, outcome, and impact). It is sometimes useful for
interventions to be divided into three stages, so as to facilitate measurement and comprehension. By way of
example, mention might just be made of USAID (1998) which divides its indicators into three stages, viz., activities,
intermediate results and strategic goals.
*
Data-collection techniques can be classified into two groups: on the one hand, direct collection
techniques which use primary sources that are generated for the purpose of the specific
research/topic and are collected by the individual or research group concerned; and, on the other,
indirect collection sources, which refer to the use of secondary sources that existed prior to
commencing the research and have been generated by subjects external to the research. Yet
beyond this distinction, for the purpose of this document it is more relevant to bear in mind the
existence of different ways of accessing information on the topic/question to which a solution is
being sought at any given point in time:
Surveys or questionnaires: this consists of questioning selected persons individually about a
series of items, with a limited choice of answers. A varying length of time is required for
application. The principal challenge lies in putting together a representative sample of individuals,
which varies in line with the total population, so that the data may then be used to make
generalisations. For example, in the case of a Supreme Court Bench having twelve members, the
questionnaire could be administered to just nine and yet still have a high confidence level. In
contrast, in order to ascertain the opinion held as to the operation of a given service of justice in
the country’s capital made up of one and a half million inhabitants, a very much bigger sample
would be necessary. Moreover, a further limitation is the need for plentiful resources for
administration of the questionnaire (trained interviewers, travel costs, etc.). The main advantage
resides in the fact that it enables specific questions to be addressed and extensive information
obtained on the targeted research topic. This accounts for its being a very widely used and
respected method in social sciences.
Interviews: Unlike questionnaires, the replies are not pre-established. Thus, the interviewee can
elaborate on aspects which the researcher may not have envisaged, something that does not
happen in the case of a questionnaire. The principal drawback is that, unless the interviewers are
skilful and highly trained, they may influence the replies given by the interviewee, which would
doubtless have a negative effect on the reliability of the results. Thanks to the economy of
resources involved and its suitability for political phenomena characterised by the existence of a
small universe, the use of this type of technique is very widespread. For example, if one wished
to form an idea of the operation of a country’s judiciary, recourse could be had, as one of the
techniques, to interviews with experts in the matter (staff of international organisations, university
lecturers and professors, former members of the justice system, etc.).
Discussion groups: this involves putting together a group of people (8-12) whose selection
depends on the subject of study. The moderator introduces a topic for debate, which is then
recorded and subsequently transcribed and analysed in order to highlight the main themes that
arise in the course of the discussion and interaction of the individuals. It is used in fields such as
political marketing to ascertain people’s images/perceptions of a candidate or party. In judicial
matters, for example, if one wished to form an idea of the main limitations on individuals’ access
to justice, recourse could be had to this technique by bringing together people from different
groups in society, with the aim of defining what, in their judgement, were the principal problems
affecting access to the judicial system.
Documentary techniques: this entails obtaining data on the basis of sources that already exist in
the form of archives and records, statistics, books or reports. A variable level of sophistication can
be introduced into the handling of such information, which can be used to get a general overview
of some aspect or, alternatively, to proceed to more in-depth evaluations using a number of
different sources. One would be using this type of technique, if one resorted to perusing reports
issued by the judiciary or to handling statistics of a given organ of same.
Other data-collection techniques include observation and experiments that are not quite so finely
tailored to the type of goals sought by those wishing to evaluate judicial systems. When it comes
to deciding which data-collection technique is to be used to ascertain the operation of the different
dimensions of justice that have been pinpointed, a balance has to be struck between the financial
and human resources available, the time one wishes to invest and the degree of specificity and
detail sought. Where wide-ranging knowledge is sought on the topic targeted for investigation or
attempted solution, it is advisable for a combination of techniques to be used. For instance, a
comprehensive view must be obtained of the way in which the method of selecting and appointing
judges works in a given country, in order to decide whether or not to invest in financing a school
for judges. Initially, one can opt for documentary techniques (press, existing reports) and conduct
some interviews with different groups (experts, judges, judicial administrative staff, journalists). In
addition, discussion groups with judges can be held to ascertain what type of problems they face
on a day-to-day basis and whether a lack of training is one of these. To this end, the panel would
be called upon to discuss a topic that was similar but not exactly identical to the subject of
research. With this combination of techniques, one comes closer to getting a more complete view
of the reality of the matter on which a decision has to be taken.
DATA-COLLECTION TECHNIQUES
DATA-COLLECTION TECHNIQUES
• Survey or questionnaire
• Interviews
• Discussion or focal groups
• Documentary collection (compilation of administrative records, bibliographic compilation at
documentation centres)
• Observation
• Experimental methods: sentinel sites (experiments), ethnographic observation exercises
3.2.3. MEASUREMENT: CHOICE OF LEVEL
The second challenge connected with measurement consists of selecting the appropriate level of
analysis of same: nominal, ordinal, or interval-based.
For assessment of standards an “ordinal” level of measurement has been chosen, distinguishing
between different “degrees” of fulfilment of standards and dimensions, namely, positive, neutral
and negative (for greater ease of understanding, these values can be summarised in the form of
letters or numbers).
The ordinal scale was chosen because not all empirical manifestations of the standards stipulated
can be quantified in any other way, or, in those cases where these can be quantified, they are not
easily comparable with others.
Example:
Must the number of cases filed in the criminal courts be recorded and compared in gross
terms, in relation to the number of judges in each country, in relation to the population, or
all of these? Moreover, it is not always possible to have access to the same indicators. For
example, to address judicial independence in a given country, one might be able to rely on
empirical studies that analyse some paradigmatic cases in depth, whereas in other countries
such studies might not have been conducted and one would have to use another type of
data, such as public perceptions yielded by surveys, interviews with experts, and the like.
This does not mean that use cannot be made of non-ordinal quantitative indicators, but rather that
any information –qualitative or quantitative- will be transformed into an ordinal format by means of
a value judgement that compares such information against the formulation laid down by the
standard. This rating process can be divided into three parts:
a) obtaining information on the target area;
b) the processing of such information by the evaluator, and,
c) the method used by the evaluator to convert such information into an ordinal ranking.
There are distortions and biases that can creep into any of these three phases: either because
the original information is false, deceptive or incomplete; or because in the processing of such
information, prejudices are introduced which discriminate against some data, in terms of their
relevance or irrelevance, in favour of others (so that important aspects are omitted or other
insignificant aspects are incorporated); or lastly, because each evaluator uses different weighting
guidelines in the method of transforming this information into an ordinal scale (Bollen and Paxton,
2000: 63). A way of dealing with these problems is to commission a single panel –which could be
the agency itself, or a group of experts, academics and reformers- to interpret and rate
information drawn from all categories and countries. This strategy increases the reliability of the
process, particularly if such a panel includes evaluators having different ideological outlooks and
experiences. Even so, the validity of the rating process as a whole can only be enhanced by
ensuring a high degree of expertise among the evaluators.
3.2.4. AGGREGATION OF INDICATORS
The aggregation of values obtained for the indicators of each of the dimensions is used to give a
final rating to each of the latter. However, aggregation of the set of indicators comprising each
dimension cannot be made in manner that is strictly scientific. On the one hand, this is because
there is the possibility that some indicators may be used to measure different concepts; and on
the other, because many of the standards are not mutually exclusive and it is not possible to
ensure a priori that they pertain to any one single category. Accordingly, there is a margin of
redundancy and superimposition in the instrument, which constitutes an insurmountable obstacle
for the aggregation phase. Even so, the dimensions may be rated directly on the basis of
verification of the variables.
Where the necessary requisites for proceeding with aggregation are absent, rating at the
dimension level still has evident usefulness: it detects each country’s most general problematic
areas, facilitates investigation of their causes and formulation of reforms, and enables a general –
albeit superficial- overview to be formed of the functioning of justice from a comparative
standpoint.
For a more graphic understanding, a practical application is provided below of the formal
organisational chart of dimensions, variables, standards, indicators and sources based on two
examples:
Example:
Let us suppose that a general overview is needed of the degree of access to justice and level of
independence enjoyed by the judicial system of any given country. Both aspects refer to the quality
of the judicial system and are difficult to comprehend, if one does not make an effort to be precise
and search for reliable indicators to obtain general conclusions about the two dimensions. In this
process of descent on the scale of abstraction, one has to proceed step by step, taking the
successive decisions that are outlined in the columns of the table shown below:
CONCEPT
DIMENSION
UNIT OF
ANALISIS
VARIABLE
STANDARD
INDICATOR
Quality of the
judicial
system
Access to
justice
General
population
Level of
confidence in
the judicial
system
A majority % of
the population
trusts in the
judicial system
Quality of the
judicial
system
Independence
Judiciary
Procedure for
selection and
appointment
of judges
Judges selected
and appointed in
a manner that is
transparent and
merit-based
% of population
which replies that
it has a
substantial or fair
degree of
confidence and
trust in the
judicial system
Existence of
merit-based
procedures for
selection and
appointment of
judges
LEVEL OF
MEASUREMENT
Interval
Collection of
documentary
sources
(examination of
laws and
regulations)
Nominal
(design
results)
Collection of direct
sources (interviews
with experts,
judges and/or
judicial staff)
The effort to draw up a comparative instrument of measurement capable of serving as a
handbook for the diagnosis of judicial systems has the following objectives, assumptions, virtues
and limitations:
Assumptions
Collection of
documentary
sources (general
population surveys,
such as the
Latinobarómetro)
Nominal
(exists or
does not
exist; types
of design)
3.3. SUMMARY
Objective
TECHNIQUE
SUMMARY OF THE INSTRUMENT
To provide a methodological tool that will aid the Spanish International Aid
Agency to diagnose problems, investigate their causes, design technically
viable solutions and assess judicial reform programmes.
It is assumed that the judicial system is comparable via a common
language, through the construction of theories and general concepts and
the introduction of relevant variables. The view is therefore held that there
are no judicial systems that cannot be compared. This does not mean,
however, that reform programmes which prove effective in one country
ought to be applied without more ado in another, given that neither the
budgets nor the goals of science and political action are the same.
Contributions
Limitations
It assumed that the values which ought to underlie the goals of any specific
reform programme are those of a democratic state based on the Rule of
Law, characterised by respect for human rights and pluralism
The methodology offered facilitates documentation of problems, detection
of their causes, technical design and assessment of justice reform
programmes, thereby enabling accumulation and ordered classification of
specific experiences.
It has the potential, in the long term, to generate a body of general
knowledge as to the operation of judicial systems, provided that the
necessary rigour is assumed. Comparison between accumulated reform
experiences will also render it possible to reduce uncertainty vis-à-vis
viable actions for the achievement of specific objectives.
The tool offered evaluates practices rather than testing causal relationships
between dimensions, though it has the potential for this; it uses standards
of assessment in lieu of scientific hypotheses and its expected result is
improvement of the practices evaluated through technically viable reforms,
and not verification of explanatory theories.
It does not allow for control of the strategic setting of each specific
programme.
It has the potential, in the long term, to generate a body of general
knowledge as to the effectiveness of the reforms, though characterised by
its uncertainty/lack of definition (greater or lesser, depending upon the
case). Accordingly, the corollary of this is that it will not ensure the success
of any reform programme.
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4
INSTRUMENT TO DIAGNOSE THE QUALITY OF A JUDICIAL SYSTEM
4.1. DIMENSION 1: JUDICIAL INDEPENDENCE
The judge, in the performance of his duties, is solely subject to the force of the law, i.e., the prevailing system of sources of law in the legal system to which he
belongs, and is free of improper interference and pressures (coercion, threats, bribes, manipulation and political patronage).
Judicial independence has two functions: to limit the power of government; and to protect the rights of citizens. The concept of judicial independence may, in
turn, be broken down into two dimensions. The first dimension consists of five elements: two parties in dispute, whom we shall denote A and B; a third actor,
external to the dispute, whom we shall denote J (the judge), who is called upon to a settle the dispute impartially; four, a rule or set of rules, R, that allows for the
dispute to be resolved in a more or less predictable manner; and five, a decision, D (handed down by the judge) which imperatively closes the case and
determines which party was right in law (Schedler, 2000, p. 392).
Impartiality
J
Source: Schedler (2000, p. 392)
R
D
A
B
Source: Schedler (2000, p. 392)
The second dimension, neutrality, must be taken to comprise the following elements: 1) Mass media (MM); 2) Government (G); 3) Legislative Power (L); 4)
Economic power groups (EG); 5) Non-governmental organisations (NGOs); 6) Non-jurisdictional organs of the judicial system (O); 7) Other judges, especially
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their superiors (OJ); and, 8) the General Public (P). In an ideal world, neither the parties nor any of these subjects should unlawfully interfere (by means of
coercion, threats, bribes, manipulation or links of political patronage) in the way in which a judge decides a specific case.
Judicial independence
Neutrality
P
G
L
MM
J
Impartiality
R
O
OJ
EG
NGOs
D
A
B
Source: In-house
In this ideal model, impartial and neutral reasoning is the “causal” mechanism which leads the judge to decide the case in accordance with the prevailing rules.
In other words, this reason or ground is the exclusive cause of the judicial decision, excluding the interests, not only of all the above-mentioned actors, but also
of the judge himself or other judges.
INSTITUTIONAL VARIABLES OF JUDICIAL INDEPENDENCE (structural independence)
The concept of judicial independence is linked to the concept of “structural independence”, which refers to the set of mechanisms intended to ensure individual
independence. From a theoretical standpoint, the minimal sufficient set of such guarantees is undefined (Linares, 2003). For merely classificatory purposes,
however, it is useful to distinguish between the various types of guarantees: 1) those that protect impartiality; 2) insularity, which consists of the fulfilment of the
set of guarantees that protect a judge from possible pressures brought to bear by the other two political powers of the State; 3) internal independence, which
protects the judge from the rest of the judiciary; 4) social independence, which protects the judge from interference of social actors extraneous to the case being
heard by the court; and 5) collective independence, which consists of fulfilment of the set of guarantees that protect the judiciary as a whole from the remaining
powers of the State.
Some of these guarantees are now set out below:
CLASS
POSSIBLE GUARANTEES
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“Guarantees that protect impartiality”
-Withdrawal or challenge on grounds of personal interest in the case.
-Judicial salaries to be SUFFICIENT to lead a decent life
-Judges barred from engaging in gainful activities
Judge ÅÆ Parties:
Others.
“Insularity”
-Merit-based selection and appointment
-Stability of tenure in the post
Judge ÅÆ Government and -Immunity
-Autonomy of salary
legislative branch
-Prohibition on political party affiliations
-Judicial decisions may only be set aside by another judge
-By means of a subsequent act, the executive branch may not disregard a decision
handed down by a judge
Others.
“Internal independence”
-Not advisable for lower judges to be disciplined by their superiors.
-Grounds giving rise to disciplinary proceedings to be clearly and precisely
stipulated. Disciplinary proceedings to be transparent, and punishment open to
Judge ÅÆ Other judges
appeal.
-Superior judges to decide within the framework of their material and temporal
jurisdiction.
Others.
“Social independence”
-Not advisable for court cases to be televised
Judge
ÅÆ
Mass
media,
Others.
power groups, NGOs
“Functional autonomy or collective -Legislative branch may neither create nor abolish bodies or jurisdictions where this
independence ”
is politically advantageous.
-Advisable for scope of judges’ jurisdiction to be guaranteed under the Constitution,
judiciary ÅÆ Government and and, furthermore, for such scope to be wide (e.g., no special administrative or
military courts).
legislative branch
-Judiciary to have the opportunity to intervene in drawing up the budget.
-Advisable for judiciary to administer its own budget.
Others.
MEASUREMENT OF JUDICIAL INDEPENDENCE: SOME USEFUL REMARKS
The concept of judicial independence is seldom directly observable. Coercion, threats and bribes tend to take place in secret, and failure to comply with the
obligation to subject oneself to the system of sources of law in judicial decisions is difficult to evaluate with precision, unless the grounds underpinning the
judicial decision are so absurd as to leave no doubt whatsoever as to the dishonesty of the judge. Hence, to measure the concept of judicial independence, it is
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necessary to have recourse to certain causal hypotheses with regard to how it operates. That is to say, measurement of judicial independence entails
“assuming” a series of factors that we feel serve to achieve this result, and proceeding to measure said standards. Consequently, the indicators set forth below
measure -directly- the degree of compliance with the standards for each of the variables, and, only because we “feel” that it could be claimed that these, in turn,
foster judicial independence, can we argue that they measure this factor “indirectly”.
The above points have important methodological implications, basically insofar as the validity of the indicators is concerned. Depending on how these indicators
are interpreted, their validity varies. The validity of such indicators is more solid when they are interpreted as direct manifestations of the variable in question; it is
more problematic, however, when these indicators are interpreted as observable facts of the concept of judicial independence, i.e., of the general dimension,
and hence the fact that these types of measurements entail a greater margin of error. This weakness cannot be eliminated, because in order to establish the
validity of these indicators (indirect or proxy indicators), direct measurements of the concept of judicial independence must be obtained and correlated with the
former. As this is not possible -given, as pointed out above, that judicial independence can seldom be observed directly- the error can at least be reduced by
taking certain precautions, namely, by explaining the variables and the causal assumptions linking them to the concept of independence correctly, and ensuring
that said standards are applicable to the whole universe to be measured and that the measurements are reliable.
Example:
The way in which a judge is selected and appointed tells one nothing directly about the degree of independence and impartiality of that judge in his
concrete actions, yet it can be assumed (postulating the hypothesis) that if a judge has been selected via a merit-based procedure, he will face fewer
pressures to act in favour of some party or actor. In other words, the actions of a judge who has been appointed by a government or party will evince
more problems of partiality and dependence upon those who appointed him. Accordingly, meritocratic selection does not measure a judge’s
independence or his impartiality directly, but does nevertheless contribute to guaranteeing it. The same happens in the case of removal of a judge or
the level of the salary that he receives. A salary in fitting with the category and training of a judge does not measure his level of independence directly,
yet it contributes to removing “reasons” for possible partiality or dependence.
The tentative variables and indicators proposed by us for measuring “judicial independence” are shown below:
VARIABLES AND STANDARDS
JUDICIARY
VARIABLE
STANDARD
Selection and appointment 1. Judges are selected and appointed by a transparent, merit-based
of judges
procedure.
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Actor(s)
involved
selection of judges
Judges’ term of office
in 2. Assessment of candidates for the judiciary is conducted by a separate
body to that which makes the final selection.
3. Judges enjoy stability of tenure, by possessing, a lifetime mandate or a
sufficiently long mandate, the expiry or renewal of which does not coincide
with the change of political posts in other branches of government.
Judges’ salaries
4. Judicial salaries are sufficient to attract qualified persons, enable them to
maintain their families and live in a reasonably safe and secure environment,
without having to resort to other sources of income.
Judges’ perquisites
5. The additional privileges (housing, vehicles, travel, courses) are assigned
by means of transparent procedures.
Promotion of judges
6. Promotions and renewals of judicial posts are made on the basis of
objective criteria, such as training, honesty and experience.
Immunity of judges
7. Judges enjoy immunity for actions taken in the performance of their
duties.
Method of disciplining 8. Judges may only be removed or disciplined on the grounds of specific and
judges
pre-established rules of conduct, via a transparent process.
Actor(s)
tasked
with 9. Disciplinary proceedings against judges are conducted by impartial bodies
disciplining judges
that perform no function other than their disciplinary role.
Method of assigning cases
10. Judges hear cases through an objective and transparent assignment
procedure, like the lottery, or in accordance with specific areas of
jurisdiction, and may only be removed on objective grounds, such as the
existence of conflicts of interests or excessive workload.
Staff
selection
and 11. Administrative staff are selected and managed on the basis of
management
transparent rules, without any intervention by other unauthorised officials.
Control of agenda
12. In cases where internal administration is undertaken by another branch
of government, this responds to the needs of the judiciary and not to the
political agenda of the administrator.
Budget control
13. Salaries and budget are neither reduced, nor is their distribution changed
by other branches of government. Changes to the budget allocated to the
judiciary correspond to the growth of the national budget and reflect
increases (or decreases) in demand for judicial services.
Degree of compliance with 14. Judicial decisions are neither ignored nor violated by the other branches
judicial decisions
of government, and where they are, those responsible are punished. Judicial
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decisions may only be set aside by means of an appeal procedure.
Interference by government 15. The jurisdiction of the judiciary is not usurped by other governmental
actors
actors.
PUBLIC MINISTRY
VARIABLE
STANDARD
Degree of interference by 1. Criminal judges do not face the threat of being subjected to disciplinary
Public Ministry
proceedings in cases where their decisions are unfavourable to the Public
Ministry. In general, the Public Ministry does not improperly interfere with
or exert pressure on judges.
VARIABLE
Entry to the profession
LEGAL PROFESSIONS
STANDARD
1. Entry to the legal profession is governed by objective and properly
publicised official rules. In cases where a professional or bar association is in
charge of admittance and discipline, it does so without any irregular external
interference.
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UNIT
OF
VARIABLE
INDICATORS AND UNIT OF MEASUREMENT
SOURCE
ANALYSIS
Selection
appointment
judges
Judiciary
UNIT
OF
ANALYSIS
and 1- Existence of a merit-based procedure for selection of
of judges.
2- Percentage of judges selected by means of a
meritocratic procedure.
Actor(s) involved in 1- Existence of specific and independent body that
selection of judges evaluates the merit of candidates for the post of judge
(judicial council, legislative committee, etc.).
Unit of measurement: yes-no
Judges’ term of 1- Legal or constitutional recognition of stability of tenure
office
and term of mandate.
2- Stipulation of specific grounds for removal from office.
Unit of measurement: yes-no
1- Interviews with experts, judges and judicial
staff.
2 - Official records kept by body in charge of
judicial career.
1- Analysis of laws, interviews.
Judges’ salaries
1- Official records of the body tasked with the
financial administration of the judiciary
1- Analysis of laws, interviews with experts,
judges and lawyers.
1-Amount of salary received by judges, per category.
2- Comparison of salaries against those of other public
functions and others employed in the private sector.
Unit of measurement: interval
Judges’ perquisites 1- Existence of transparent procedures for allocating
additional privileges.
Unit of measurement: yes-no
Promotion
of 1- Existence of transparent promotion and renewal
judges
procedures for judicial posts
Unit of measurement: yes-no
2- Percentage of promotions and renewals (over the total)
on the basis of objective merit-based criteria.
Unit of measurement: interval (%)
Immunity of judges 1- Legal or constitutional recognition of judicial immunity.
2- Official statistics kept by body in charge of
administration of judicial career (e.g., Court,
Council)
1- Analysis of laws, interviews with experts.
Method of
disciplining judges
1. Analysis of laws, interviews with judges, direct
observation of court cases.
VARIABLE
1- Existence of transparent disciplinary procedures based
on clear objective rules of conduct.
Unit of measurement: yes-no
2- Number of judges disciplined per year, by type of
punishment and type of ground.
Unit of measurement: interval.
INDICATORS AND UNIT OF MEASUREMENT
1- Interviews with judges.
1. Analysis of laws, interviews with experts,
judges and judicial staff
RELEVANCE OF INDICATOR /
CAUSAL ASSUMPTIONSS
Meritocratic procedures produce judges who are
more transparent and less susceptible to improper
interference and pressures.
There are less likely to be political-patronage-type
practices in the selection of judges where there is
an independent evaluating body.
A judge whose permanence in the post depends
solely on the goodwill of another person, or who
can be removed without good cause, is highly likely
to be susceptible to improper influences exerted by
those to whom he owes his post.
A judge who does not have a salary that is
sufficient to allow him to lead a decent life is more
exposed to the temptation of accepting bribes.
Allocation of additional privileges may be used as a
mechanism of influence to reward dependent
judges.
Promotion may be used as a mechanism of
influence to reward dependent judges, and nonpromotion as a mechanism to punish disobedient
judges.
Judicial immunity protects a judge from possible
political manoeuvres intended to keep him from the
performance of his duties.
Disciplinary proceedings may be used to keep the
judge from hearing a specific case, or to remove a
disobedient judge.
2- Official statistics kept by the body tasked with
holding disciplinary hearings (e.g., Court, Grand
Jury, Council, etc.)
SOURCE
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CAUSAL ASSUMPTIONS
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Judiciary
Actor(s) tasked with Existence of independent organs with the sole function of
disciplining judges
conducting disciplinary proceedings
Unit of measurement: yes-no
Analysis of laws, interviews with experts
Method of
assigning cases
Analysis of laws, interviews with judicial staff, litigants
and judges.
Existence of objective transparent procedures for
assigning cases (per jurisdiction).
Unit of measurement: yes-no
Staff selection and 1- Existence of transparent merit-based procedures for
management
selection and promotion of judicial staff.
Unit of measurement: yes-no
2- Percentage of staff appointed (over the total) on the
basis of objective merit-based criteria
Unit of measurement: interval (%)
UNIT
OF
ANALYSIS
1. Interviews with experts, judicial staff, litigants and
judges.
2- Official records of the body tasked with staff
administration (note: this may be centralised –court
appoints all judicial staff- or decentralised- each judge
appoints his staff)
1- Analysis of the Constitution, laws, interviews with
experts and judges.
Control of agenda
1- Existence of body belonging to another branch of
government (e.g., Ministry of Justice) tasked with internal
administration.
Unit of measurement: yes-no
2- Amount of budget allocated to the judiciary (percentage 2- Official records of the body tasked with judicial
budget administration.
in relation to total budget allocated to the State)
Unit of measurement: interval (%)
3- Percentage of judges who feel that the budget
3- Questionnaire administered to judges
administered by another branch of government is
sufficient to perform their duties properly.
Unit of measurement: interval (%)
Budget control
1- Legal recognition of the intangibility of judicial salaries.
Unit of measurement: yes-no
2 - Recognition by case law and precedent of the indexing
of judicial salaries in inflationary situations.
Unit of measurement: yes-no
3 -Percentage of the budget allocated to the judiciary in
relation to the total State budget, and in relation to the
number of cases filed per year.
Unit of measurement: interval (%)
1- Analysis of laws, interviews with experts.
INDICATORS AND UNIT OF MEASUREMENT
SOURCE
VARIABLE
Organs that, in addition to holding disciplinary
proceedings, exercise other jurisdictional
functions (particularly, where these are
hierarchically superior), are more exposed to
taking a decision biased by other matters not
pertaining to the case.
The procedure for assigning cases can be
manipulated in order to assign the most relevant
cases to dependent judges.
Appointment of administrative staff for reasons
of political patronage leads to doing “favours”,
something that can undermine judicial
independence.
An inadequate budget allocation not only
renders judges more vulnerable to being bribed,
but at times may be used as a mechanism to
weaken the judiciary as a whole.
Manipulation of salaries may be used to “punish”
disobedient judges.
2 - Analysis of case law, interviews with experts.
3 - Official records of the Ministry of Economic Affairs
and the body tasked with judicial budget
administration. Judicial statistics.
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CAUSAL ASSUMPTIONS
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Judiciary
Degree of
compliance with
judicial decisions
Interference by
government actors
Public
Ministry
Legal
professions
Degree of
interference by
Public Ministry
Entry to the
profession
1- Existence of judicial decisions that are not enforced, or
that are set aside by other branches of government.
Unit of measurement: yes-no
2 - Number of judicial decisions disregarded or set aside
by other branches of government
Unit of measurement: interval
1 - Existence of administrative bodies with jurisdictional
functions, whose decisions may not be reviewed by the
courts (or where the judicial procedure provided lays
down requirements that are so difficult to fulfil as to
render them unattainable)
Unit of measurement: yes-no
1- Existence of disciplinary hearings at the instance of the
Public Ministry.
Unit of measurement: yes-no
2- Number of disciplinary complaints brought by the
Public Ministry
Unit of measurement: interval
3- Percentage of judges who feel threatened with being
subjected to a disciplinary hearing when they hand down
judicial decision against indictments brought by the public
prosecutor
1- Existence of objective, clear and non-discriminatory
rules governing entry to courses leading to a judicial
career.
Unit of measurement: yes-no
2- Existence of transparent disciplinary hearings against
lawyers
Unit of measurement: yes-no
3- Number of disciplinary hearings per year against
lawyers (classified by ground and punishment)
1- Analysis of laws.
Interviews with experts
Mass media.
If the executive branch is able to “revoke” a judicial
decision, what use is independence?
2 – Issue briefs and studies.
1- Analysis of statute law, analysis of case law,
interviews with experts, lawyers and judges.
The existence of administrative bodies with
jurisdictional functions enables the political power
to manipulate those matters it deems most
important, without these ever being aired in the
courts.
1- Interviews with experts, judges and public
prosecutors.
If the Public Ministry is in the practice of reporting
judges to the body tasked ’with holding disciplinary
hearings, said judges may well come to “fear”
handing down a decision against indictments
submitted by the public prosecutor.
2 - Official records kept by body tasked with
holding disciplinary hearings
3 - Questionnaire administered to judges
1 and 2 - Analysis of laws, interviews with experts
and lawyers.
3 - Official records of legal associations, bar
associations, or any other body tasked with the
administration of the legal profession (e.g., the
Supreme Court in El Salvador).
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It is assumed that one of the most negative factors
against judicial independence stems from lawyers,
particularly in those countries where lawyers do not
have the perception that their conduct may be
subjected to disciplinary measures, and where
unlawful practices are the norm.
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ALTERNATIVE INDICATORS FOR MEASURING JUDICIAL INDEPENDENCE
As explained above, judicial independence can seldom be observed directly. Apart from the
measurement of the designated standards, which serve to “infer” judicial independence in the
light of a series of assumed hypotheses, there are also other “indirect” measurement techniques.
These may constitute alternative forms of measurement of the dimension where one has
problems with data collection for one or more standards, or where in the respective countries
there are issue briefs and studies to which recourse can be had to reduce the financial costs of
this task. Outlined below are other alternative ways of measuring judicial independence (for a
fuller description of these techniques, see Linares, 2003):
1) Analysis of the legal consistency of judicial decisions:
In general, judges can be said to be under an obligation to apply formal law. This obligation,
which is fundamentally attributable to the continental legal systems, could form the basis of the
hypothesis that “the independent judge decides the case in accordance with the framework of
possibilities for decision stemming from interpretation of the rule”. This hypothesis can, in turn,
serve to draw observable consequences. What one observes may consist of decisions and
arguments of a judge, which are almost invariably in writing and in the form of a judicial decision.
This observation could then enable one to infer partiality or absence of independence on the part
of the judge, where such decisions do “not coincide“ with what one believes is required by law.
This, therefore, entails comparing the judicial decisions against the statutory provisions: if said
decisions verify what one believes to be the correct solution afforded by the law, this coincidence
can then be taken as evidence that the judge acted independently. When this cannot be verified,
however, such divergence could be taken as a sign that there might be bias on the part of the
judge.
2) Analysis of the legality of the proceedings
It is the obligation of all judges to conduct judicial proceedings in accordance with pre-established
rules. Hence, the fact that proceedings are conducted in violation of the guarantees of due
process, may be used as an indicator which allows one to infer the degree of impartiality of the
judge, e.g., the fact that the accused or defendant is not allowed to see his defending counsel,
that the police may have destroyed or withheld relevant evidence with the judge’s consent, or that
the judge might know that witnesses had given depositions under menaces or bribes, etc., can be
interpreted as proof of a judge’s partiality.
The problem with this inference resides essentially in its validity. Unless they are flagrant,
violations of due process often tend to take place without the judge’s knowledge. If this is indeed
the case, then these facts cannot serve as valid indicators of lack of judicial independence, but
rather as indicators of corruption in other organs of the judicial system, such as public
prosecutors, police, defenders, administrative employees and the like.
3) Percentage of decisions for and against certain categories of subjects
If the decisions of a judge are examined and he is found to have decided systematically in favour
of certain categories of subjects (the State, state-run companies, specific groups), one can infer
with a certain probability whether or not he has taken the decisions in a biased manner.
One of the main problems with this technique is that variations in the results of the court case
may not be exclusively the result of improper interference and pressures, and instead be
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attributable to other alternative variables which have not be borne in mind, such as the lawfulness
of the action challenged or its institutional relevance. In other words, the fact that a given
percentage of judicial decisions may have been in favour of a given actor (e.g., judicial decisions
in favour of the State), does not necessarily prove the dependence of the judge, since it might
well mean that said actor was in the right, i.e., that he acted lawfully.1 Yet how does one evaluate
the lawfulness of any given conduct? Once again, there is a need for persons with a legal training
equivalent or superior to that of the judge, to decide this aspect on a case-by-case basis.2 Control
of the variable “lawfulness of the facts”, doubtlessly constitutes the single greatest weakness of
these studies.
The relevance of the facts per se is another factor to be borne in mind: the fact that a judge may
decide unfavourably in a case in which the State has only a formal interest is not the same as one
in which institutional relevance is involved (Rossen, 1987, p.12, Larkins, 1996, p.617, Helmke,
1998, p.9). This means that, in order to ascertain whether there is dependence or independence,
the relevance of the case must also be examined. Among the examples cited below, only the
study by Helmke (1998) controls this variable in a very innovative manner.3
The fact that a judge decides systematically in favour of a certain actor may simply mean that said actor has valid
legal grounds for acting as he does, and that the parties who challenge or question his conduct, do so recklessly and
groundlessly.
2 Helmke (1998) proposes observing whether the court or a higher court finds systematically in favour of given actor
by “revoking” a judicial decision of a lower court that held against same. This, in said author’s opinion, could
constitute stronger evidence of the court’s “dependence” than the mere list of judicial decisions issued “for” or
“against”. It should be pointed out, however, that this evidence would not serve to analyse judges of the first instance.
Control of the variable “lawfulness of the facts”, doubtlessly, constitutes the greatest weakness of these studies.
3 To measure the relevance of the case, Helmke (1998) takes as the parameter the fact that judges sitting on the
bench of the court may choose to express their arguments individually and definitively, and not simply adhere to the
arguments put forth by one or more colleagues, or the fact that there may be votes for and against. The underlying
hypothesis is that the definitive expression of arguments constitutes a sign of the relevance of the case. Judges work
under limited time conditions vis-à-vis their workload, and only in very important matters do they make a concerted
effort to express their arguments consistently or dissent from opinions expressed by other judges. The point must be
made, however, that this hypothesis is not altogether confirmed: whilst Kluger (1976), Epstein and Knight (1998)
furnish evidence, from which it can be inferred that in cases of relevance judges tend to take unanimous decisions,
other more recent empirical studies (Epstein and Segal, 2000, p.7) produce evidence to the contrary.
1
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AUTHOR
UNIT OF
ANALYSIS
METHOD
SAMPLE
González Casanova (1974)
Supreme Court
Mexico
Quantitative
3700 appeals for legal protection against
the State
Schwartz (1973)
Supreme Court
Mexico and
USA
Appeal Court
United
Kingdom
Supreme Court
Argentina
Quantitative
108 appeals for legal protection against
the governing party
Quantitative
Decisions for
government
Quantitative
Cases in which the State was a party or
in which the constitutionality of a decree
was involved
Decisions for and against the parties and
Electoral Board
Decisions for and against the
government
Salzberger (1993)
Helmke (1998)
Merino (1999)
Electoral Court Quantitative
Mexico
Salzberger and Fenn (1999)
Appeal Court
Quantitative
United
Kingdom
Ramseyer and Rasmusen, Judiciary
Quantitative
(2001)
Japan
Rattner and Salzberger(2000)
Salzberger (2001)
Source: Linares (2003)
Appeal Court
Israel
Quantitative
and
against
the
Decisions for
government
and
against
the
Decisions for
government
and
against
the
4) Measurement via perceptions
This type of measurement consists of ascertaining the opinion of certain relevant actors as to the
degree of independence enjoyed by a judicial system. Judicial independence is thus assessed as
a whole or as a result. This type of measurement is the most usual.
Techniques can vary depending on the level of measurement chosen and the subjects surveyed,
e.g., judges, citizens, expert users or non-expert users, as well as other officials of the judicial
system. A classic instance of this type of measurement is the work of Kenneth Johnson, who
drew up a judicial-independence ranking for Supreme Courts in 20 Latin American countries from
1945 to 1975, by administering questionnaires to 84 experts in the matter.
Similarly noteworthy is the study by Toharia (1999, p.18), setting out the opinion held by Spanish
citizens in 1997 about certain dimensions of justice, including impartiality and independence. Díaz
Rivillas and Ruiz Rodríguez’s report (2003) on judicial independence in Nicaragua measures the
perceptions of judicial independence held by the judges themselves, in order to analyse these in
their institutional context, and succeeds in effectively combining historical data, institutions,
objective indicators and perceptions.
Other sources that can be classified under this head include the World Business Environment
Survey (WBES), targeted at measuring international investors’ perceptions as to a number of
topics that are borne in mind when it comes to investing in a country. Figuring among these topics
are the qualities of a legal system and, inter alia, the perceptions of impartiality, honesty and
transparency of a judicial system. The level of measurement is ordinal and ranges from 1 to 6
(Djankov, La Porta et al, 2002)
These measurements are certainly valid as indicators of the culture or thinking of given subjects;
their validity is more debatable, however, if they are interpreted as indirect indicators of judicial
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independence. This is because it is usual that changes in perceptions take place more slowly
than do changes in the status quo. In this connection, it has been said that it is normal for users
of a judicial system to take a long time before acknowledging the objective advances registered in
the field of judicial independence and to continue perceiving justice as corrupt and dependent
despite these achievements. It is not hard to come across a number of judicial powers of
acknowledged independence which receive assessments of low trust or negative impressions on
the part of the population (Hammergren, 2000, p.7).
This is because the hypothesis on which this method is based is empirically refutable:
perceptions do not usually reflect reality accurately -this will depend on just how well-informed the
interviewees are. Accordingly, when those recording their perceptions are persons of
acknowledged experience in the matter, with in-depth knowledge of the reality about which they
are talking, this serves to increase the accuracy and validity of such measurements.
To sum up, the aspiration of measuring the independence of the judiciary in exclusively formal
elements (e.g., whether judges enjoy stability, who manages the budget, procedure for selection
and appointment, and many more) is inadequate to the task. Formal provisions and institutional
structures, albeit important, do not ensure that a judicial system enjoys independence. An
example will suffice: in the United Kingdom, judges are appointed by the government, without this
in any way diminishing the independence of the former in the performance of their duties
(Toharia, 1999: 31). Moreover, in many countries, these guarantees of independence are
routinely ignored or transgressed. Hence, formal safeguards are not enough to evaluate the
independence of the judiciary: it is necessary to go beyond these by assessing how such
guarantees work (whether or not they are complied with), and using empirical data (surveys,
interviews with experts, issue briefs and studies).
Neither will reliable information be obtained solely by questioning judges or experts. No judge
would admit that he had arrived at a decision because he was pressured to do so by a certain
actor. On the contrary, he will attempt to conceal his lack of autonomy (Hammergren: 2001: 31).
Thus, measurement of this dimension must inevitably be indirect.4 That is to say, in the absence
of direct indicators of independence, data will have to be interpreted in the light of certain
hypotheses (among these, the standards of assessment) which are assumed to favour attainment
of judicial independence. This, moreover, has some weaknesses: firstly, it postulates a series of
hypotheses;5 and secondly, the relative weight of each factor in the determination of the result is
not known.
The challenge of measuring judicial independence is hedged about by obstacles, and the only
general guideline that can be given here is to evaluate each of the designated standards
empirically, and then wisely combine the subjective indicators (based on questionnaires and
personal interviews) and objective indicators (analysis of paradigmatic cases, statistical records,
percentage of decisions for and against the State or certain categories or subjects, violations of
due process, etc.).
Bureau of Justice Assistance. Trial Court Performance Standards and Measurement System. U.S Department of
Justice. Office of Justice Programs. Washington D.C. July 1997.
5 This opinion is shared by Hammergren (2000), who, on drawing up her list, analyses each of the components of the
dimensions as “independent variables” rather than indicators (See Annexe 1).
4
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4.2. DIMENSION 2: ACCOUNTABILITY
The concept of accountability can be defined in terms of two attributes: a) answerability; and b)
enforcement. The former attribute consists of the obligation placed on civil servants to report their
activities and decisions, and offer explanations that justify same, truthfully, completely, responsibly
and in a timely manner. The latter consists of the possibility that such civil servants face in the
event that they transgress or ignore this obligation, namely, that of being disciplined.
Source: In-house on the basis of Schedler (1999) and State of the Nation Project (2003)
In its strictest sense, “to be held accountable“ means being bound to report and give explanations
that possess certain qualities, i.e., the need for these to be truthful, complete, timely and
responsible (State of the Nation Project, 2003). Thus, reports and explanations that fail to fulfil
these qualities cannot be properly deemed to constitute “accountability”.
Accountability is an imperative of democratic origin: democracy demands that all exercise of
power of the State stems from and can be handed back to the people. The principle of division of
powers, as an attribute of the Rule of Law, does not emerge as something opposed to
democracy: on the contrary, its effects may only be deployed within this democratic principle. This
means that there is no legal right which would permit some spheres of the exercise of State
power to be released from the need for democratic legitimation. In other words, implicit in the fact
that the citizenry has delegated power to its representatives is the obligation on the part of the
latter to report on any decisions taken in performance of such representation. Accordingly, the
mere confirmation that, in the case of the judiciary, this democratic legitimacy does not stem
directly from the people (electoral legitimacy), will in no way exempt it from the duty to hold itself
accountable to citizen body for its actions (legitimacy of performance).
CONCEPT
ATTRIBUTES
COMPONENTS
Reporting
Answerability
Accountability
Explaining
Enforcement
Penalty or
punishment
Source: In-house
For a better understanding and specification of the standards of assessment, it is useful to
consider some “types” of accountability, namely, vertical-social and horizontal.6 Social
accountability consists of informal control exerted by criticisms levelled by public opinion, and
voiced, in particular, through the mass media, lawyers, university academics and others. While
this type of accountability tends to entails no more than reputation-related sanctions, it may give
rise to the filing of legal actions. Horizontal accountability, on the other hand, consists of control
over judges exerted by other branches of government.
We have deliberately excluded electoral accountability, due to the fact that electoral procedures for selecting judges
is a topic that has been thoroughly debated.
6
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VERTICAL-SOCIAL ACCOUNTABILITY
Social accountability is a mechanism of vertical rather than electoral control of political authorities,
based on the actions of a broad spectrum of associations and citizen movements as well as the
media. The actions of these actors are aimed at monitoring the conduct of civil servants, exposing
and denouncing any unlawful acts committed by same, and activating the operation of horizontal
agencies of control. They are channelled through institutional as well as non-institutional avenues.
Legal actions brought before the courts or complaints registered before supervisory bodies are
example of the former: social mobilisations and media exposés usually aimed at imposing
reputation-type sanctions are representative of the latter.
Source: Smulovitz, 2001, p.2 and 3.
HORIZONTAL ACCOUNTABILITY
Horizontal accountability consists of the obligation imposed upon state organs to report and give
explanations of their activity to other state powers. This component seeks to ascertain to what
measure judges are answerable for their actions to other organs of state. The explanation for this is
to be found in the following argument: the concept of justice as a component of the Rule of Law
entails, among other consequences, an account of what judges do being given to the remaining
organs of government (parliament, executive branch).
Source: In-house
The function of the judiciary, as well as other organs of the judicial system, involves not only a
right, but also a duty. In this respect, this is the right-duty possessed by some persons -judges,
public prosecutors, defenders, police officers- to perform their respective activities -issuing judicial
decisions, investigating, defending, safeguarding security, etc. This right-duty derives from
principles and rules, both written and customary, that govern it.
All these functions necessarily entail the duty to report to someone. By definition, accountability
implies reciprocity: the existence of another person, the party who is to receive the explanations,
without whom this obligation could not take shape. This person -the recipient- has the right to
demand that the obligation to furnish an explanation be fulfilled. In brief, accountability is an
obligation which, as its counterpart, has a right, namely, the right to hold another accountable
(State of the Nation Project, 2003).
Accountability likewise presupposes the existence of a set of laws and institutions tasked with
ensuring that this obligation is met. Indeed, the actors in matters of accountability are part of a
network of obligations and rights that bind them, governing their current conduct and generating
expectations as to the future. This is so because accountability is not a sole event, but rather a
practice that is repeated over time, and this repetition requires rules that define the actors who
may legitimately give and request explanations, the mechanisms and occasions recognised for
such purposes, and the resources available to each party (State of the Nation Project, 2003)
As a consequence, accountability in the ambit of a judicial system contains the following
elements: firstly, the obligation to report and explain as regards fulfilment of the respective duties
of each organ; secondly, a series of institutions and guarantees that ensure compliance with the
function; and thirdly, the possibility of being punished where the duty to inform and furnish
explanations truthfully, completely, in a timely fashion and responsibly, is transgressed or
ignored. This therefore results in the following scheme:
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ELEMENTS OF ACCOUNTABILITY
1) A duty to report in respect of effective fulfilment of the function performed by a public organ
within the judicial system
2) A guarantee that ensures compliance with the duty to report.
3) A sanction in the event of breach of the public function
Source: In-house
The case of judges may well serve as an example. A judge’s duties embrace a variety of fields:
administrative, procedural, substantive law, ethical and financial. In the administrative field,
judges are accountable for the conduct of court cases, the organised scheduling and holding of
court hearings, and the obligation to resolve disputes within a set time (administrative
accountability); on the procedural front, judges must process court cases in accordance with the
rules of procedure, respecting the guarantees of due process; insofar as substantive issues or
questions of law are concerned, judges must assess the evidence and interpret the facts and
applicable law correctly; from an ethical point of view, judges are bound to meet the ethical
standards of the profession (professional accountability); and lastly, judges must make correct
use of public money (financial accountability). Each of these duties inextricably entails the duty to
report, but this would be a dead letter if there were no guarantees to ensure it (e.g., complaints
system, appeal procedures, internal audits, etc.). The exercise of these guarantees may
ultimately lead to the punishment of those who default in the fulfilment of their duty. What has
been said above of judges may also be applied, with certain variations, to other organs of the
judicial system.
WHO
MUST
INFORM
AND
EXPLAIN
Judges
MATTER
DUTY
GUARANTEE
TO SANCTION
IN
THE TO WHOM?
ENSURE
EVENT OF BREACH OF
ACCOUNTABILITY DUTY
(REPORT
AND (PUNISHMENT)
EXPLAIN)
Administrative
Order,
registration,
staff
administration,
courtesy,
timetables, etc.
Procedural
Compliance
with due
process.
Example:
Publication of
standards governing
internal administration
of cases.
Systems of registering
complaints about the
quality of service
(guarantee)
Example:
Public access to
proceedings.
Appeals (guarantee).
Example:
Disciplinary liability
Political responsibility
Example:
Supreme Court or
Judicial Council
Example:
Criminal liability (e.g., denial of
justice, abuse of authority)
Civil liability
Political responsibility
Setting-aside of ruling or judicial
decision
Example:
Court of Appeal
(special court hearing
appeals in
administrative
matters)
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Jurisdictional:
weighing-up of
the evidence and
application of
¿derecho de
fondo/substanti
ve law
Error in
interpretation of
the facts,
evidence or
law.
Example:
Publicising of judicial
decisions.
Appeals (guarantee).
Example:
Setting-aside of judicial
decision
Liability on the part of the:
7
-State
-Judge
8
-Judge and State
Example:
Court of Appeal
(special courts
hearing appeals in
administrative
matters and motions
to vacate).
Financial
Use of public
resources:
salaries,
budgets.
Example:
Publicly accessible
information.
Complaints (guarantee)
Example:
Political responsibility,
disciplinary and criminal liability
Example:
Another judge
Professional
ethics
Appropriate
conduct in
accordance
with the
standards of
the profession
Example:
Publicising of Code of
Ethics.
Complaints.
Example:
Political responsibility,
disciplinary and criminal liability
Example:
Supreme Court or
Judicial Council
Source: In-house
Germany, 1981, Bonn Constitution, Article 34. Although the State has an action for recovery in the event of wilful
misconduct or gross negligence on the part of the judge. France, Act 626, 1972
8 Spain and Italy
7
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ALLEGED TENSION BETWEEN ACCOUNTABILITY AND JUDICIAL INDEPENDENCE
It has been said that accountability is at odds with judicial independence, and that the two cannot
coexist because they are contradictory. As Toharia has pointed out, undue emphasis on judicial
independence has so distorted the concept, that it is no longer possible to conceive of the judiciary
as being controlled. People have come to think that it is not compatible for a judiciary to be
independent of and, at the same time, answerable to the other branches of government (executive,
legislative, armed forces).
Nevertheless, this is not correct for the following reason: if one conceives of judicial independence
as the judge being subject to the system of sources of law prevailing in a country and the absence of
improper interference and pressures in the resolution of cases, and accountability as the obligation
to report on duties inherent in the judicial function and, where this fails to occur, the possibility of
being disciplined or punished for same, then there is no margin for incompatibility. If
accountability has to take place in terms of objective, widely accepted, published rules and general
criteria, it is impossible to think that such rules would be used to influence a concrete case
improperly.
Furthermore, a distinction must be drawn between the notion of accountability and that of
independence, inasmuch as the former implies a posteriori control, whereby justice is required to
report to certain organs of control on its “past” performance, while the latter entails improper
influence “prior” to a judicial decision (Hammergren, 2001b: 148).
In the words of Hammergren: “the two developments are not contradictory; at least in the current environment,
more independence seems to require more accountability, and accountability in some instances can be seen as enhancing
independence” (Hammergren, 2001b: 155).
Source: In-house
A breakdown is given below of the assessable variables and standards of accountability in the
various official organs of a judicial system. It is necessary to clarify, at this point, that the
standards correspond to a variety of duties and functions peculiar to each organ, and that they
solely seek to ascertain whether adequate public information of said functions is furnished and
not whether said functions are performed effectively (an aspect covered by efficiency):
VARIABLES AND STANDARDS
JUDICIARY
STANDARD
1. The procedure for selecting judges is open and transparent, citizens have
the opportunity of raising objections to the candidatures, and appointments
are appropriately publicised.
Publicising
of
conduct 2. Standards of performance and ethical conduct are appropriately
criteria
publicised. There is a procedure for registering complaints about any breach
by judges of their professional duties, and this in turn gives rise to
transparent disciplinary proceedings.
Clarity of procedural rules
3. Procedural rules are clear and appropriately publicised. Users have access
to information as to the status of their case. Court hearings and statements
are announced publicly and are open to the public.
Publicising
of
judicial 4. Judicial decisions are suitably notified to the parties and are normally
decisions
published, basically where these are handed down by the highest ranking
judicial organs or where they address issues of legal or institutional
relevance. Judicial decisions are open to the scrutiny of the press and nonjudicial (e.g., academic) organisations, who may comment on same without
fear of reprisal.
Quality of information on 5. Adequate information is supplied to the public about the functions and
administrative functions
responsibilities of administrative staff, and there is a procedure whereby
lawyers and the public are able to register complaints about the conduct of
administrative personnel.
VARIABLE
Selection of judges
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Level of information on 6. Budget allocations -drawing-up and application process- and
budgets
administration of resources are regularly assessed and audited. Information
on the budget, salaries and audit results is publicised and easily accessible to
the public.
Level of information on 7. Requests for additional allocation of resources and proposals for greater
court
applications
and investment in infrastructures and equipment are publicly presented, along
lawsuits
with an opportunity for discussion.
PUBLIC MINISTRY
STANDARD
of
conduct 1. There are standards of performance and ethical conduct to be observed
by public prosecutors, which are appropriately publicised. There is a
procedure for registering complaints about any breach by public prosecutors
of their professional duties, and this in turn gives rise to transparent
disciplinary proceedings.
Level of information on 2. Information is supplied to the public about the effective performance of
performance
the Public Ministry (number of cases, number of indictments, etc.) and the
use of financial resources (budget allocated, budget spent, donations, etc.).
Citizen access to actions
3. The parties and anybody who may have a legitimate interest have access
undertaken
to actions undertaken by the Public Ministry, save where there are reasons
of public interest which justify the secrecy of same (e.g., danger to life or
physical integrity).
VARIABLE
Publicising
criteria
POLICE
VARIABLE
Publicising
criteria
STANDARD
conduct 1. There are standards of performance and ethical conduct to be observed
by police officers, which are appropriately publicised. There is a procedure
for registering complaints about any breach by police officers of their
professional duties, and this in turn gives rise to a transparent process.
Level of information on 2. Information is supplied to the public about the effective performance of
performance
the police (number of detentions, number of raids, etc.) and the use of
financial resources (budget allocated, budget spent, donations, etc.).
of
PUBLIC DEFENCE
STANDARD
of
conduct 1. There are standards of performance and ethical conduct to be observed
by public defenders, which are appropriately publicised. There is a
procedure for registering complaints about any breach by public defenders
of their professional duties, and this in turn gives rise to transparent
disciplinary proceedings.
Level of information on 2. Information is supplied to the public about the effective performance of
performance
the Public Defence (number of cases, number of cases per defender, etc.)
and the use of financial resources (budget allocated, budget spent,
donations, etc.).
VARIABLE
Publicising
criteria
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VARIABLE
Publicising
criteria
of
conduct
Level of information on
performance
Degree of accessibility to
detainees enjoyed by lawyers
PRISON SYSTEM
STANDARD
1. There are standards of performance and ethical conduct to be observed
by public prison officers, which are appropriately publicised. There is a
procedure for registering complaints about any breach by public prison
officers of their professional duties, and this in turn gives rise to transparent
disciplinary proceedings.
2. Information is supplied to the public about the effective performance of
the prison system (number of detainees in preventive detention, number of
detainees serving prison sentences, number of prisons and detention
centres, etc.) and the use of financial resources (budget allocated, budget
spent, donations, etc.).
3. Public and private defence counsel have easy access to and
communication with detainees.
LEGAL PROFESSIONS
STANDARD
of
conduct 1. There are standards of performance and ethical conduct to be observed
by lawyers and other legal professions (e.g., notaries), which are
appropriately publicised. There is a procedure for registering complaints
about any breach by lawyers of their professional duties, and this in turn
gives rise to transparent disciplinary proceedings.
Level of information on 2. Information is supplied to the public about the number of lawyers
number of lawyers
registered or authorised, and to the member of professional associations
about the correct use of financial resources.
VARIABLE
Publicising
criteria
CIVIL SOCIETY
VARIABLE
STANDARD
Existence of NGOs active in 1. There are citizen organisations (NGOs, civil associations, companies,
seeking accountability
mass media, etc.) which seek, actively and independently, to hold the
constituent bodies of a judicial system accountable, and which bring legal
actions against acts of corruption.
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UNIT OF
VARIABLE
INDICATORS AND UNIT OF MEASUREMENT
SOURCE
ANALYSIS
Selection of judges
Judiciary
1. There is an open and transparent procedure for selecting judges, with citizens being 1. Direct observation, interviews with candidates, judges and experts.
afforded the opportunity of raising objections to candidatures.
2. Publication or absence of publication of appointments in major mass media.
2. Official gazettes, press and mass media.
Unit of measurement: yes-no
Publicising of conduct 1. Publication of standards of performance and ethical conduct to be observed by
criteria
judges.
2. Existence of procedure for registering complaints about any breach by judges of
their professional duties (alternative indicator: number of complaints lodged,
percentage of users who believe that if they file complaints, account will be taken of
same).
3. Existence of transparent disciplinary procedure.
Unit of measurement: yes-no (alternative indicator 2: interval)
Clarity of procedural 1 Existence of clear and adequately publicised procedural rules and regulations.
Unit of measurement: yes-no
rules
2. Access by users of justice to information on the status of their cases (alternative
indicator: percentage of documents given to the parties or percentage of users who
state that they have adequate access to the status of cases).
Unit of measurement: yes-no (alternative indicator: interval)
3. Adequate publication of court hearings.
4. Public access to court hearings (alternative indicator: percentage of court hearings
open to the public or with restricted access).
Unit of measurement 3 and 4: yes-no (alternative indicator 4: interval)
Publicising of judicial 1. Adequate notification of judicial decisions (alternative indicator: percentage of cases
decisions
in which notification was sent and received correctly).
2. Publication of relevant judicial decisions or those handed down by the Supreme
Court.
3. Existence of critical reviews of judicial decisions by the press and academia.
Unit of measurement: yes-no (alternative indicator 1: interval)
Quality of information on 1. Publication of standards for the functions and duties of judicial administrative staff.
administrative functions 2. Existence of procedure whereby lawyers and the public can register complaints
about the conduct of judicial administrative staff.
Unit of measurement: yes-no
1. Analysis of laws, official gazettes, press, mass media; direct observation in
Lower and Magistrate’s Courts.
2. Direct observation in Lower and Magistrate’s Courts, interviews with judges,
judicial staff and lawyers. Analysis of laws. (Alternative indicator: complaints
registers in Lower and Magistrate’s Courts, user questionnaires).
3. Interviews with experts, judges, judicial staff and lawyers. Direct
observation.
Level of information on 1. Existence of internal assessment audits or administrative systems of control for the
budgets
drawing-up and implementation of judicial expenditure.
2. Public access and adequate (or inadequate) publication of information on budgets,
salaries and audit results (an ordinal scale may be adopted: unrestricted, moderately
restricted, highly restricted access).
Unit of measurement: yes-no
1. Interviews with judges, lawyers, experts and judicial staff.
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1. Interviews with experts, lawyers and legal scholars. Analysis of laws, official
gazettes and press.
2. Questionnaires or interviews with users, lawyers and judicial staff. Direct
observation in Lower and Magistrate’s Courts. (Alternative indicator: statistical
records of Lower and Magistrate’s Courts)
3 and 4. Questionnaires or interviews with users, judges, lawyers and judicial
staff. Direct observation in Lower and Magistrate’s Courts.
1. Questionnaires or interviews with judicial staff, users and lawyers.
2 and 3. Analysis of legal journals, official gazettes, press and mass media.
Interviews with experts, journalists, lawyers and legal scholars.
1. Questionnaire or interviews with users, judges, lawyers and judicial staff.
Direct observation in Lower and Magistrate’s Courts.
2. Questionnaire or interviews with users, judges, lawyers and judicial staff.
Direct observation in Lower and Magistrate’s Courts.
2. Questionnaires or interviews with experts, judges and judicial staff.
Simulation (application for information on body tasked with administration of
the judicial budget).
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Level of information on 1. Publication of requests for additional allocation of resources and proposals for 1. Questionnaires or interviews with experts, judges and judicial staff.
court applications and greater investment in infrastructure or equipment.
Simulation (application for information on body tasked with administration of
lawsuits
Unit of measurement: yes-no
the judicial budget).
UNIT OF
VARIABLE
INDICATORS AND UNIT OF MEASUREMENT
SOURCE
ANALYSIS
Public
Ministry
Police
Publicising of conduct 1. Publication of standards of performance and ethical conduct to be observed by
criteria
public prosecutors.
2. Existence of procedure for registering complaints about any breach by public
prosecutors of their professional duties.
3. Existence of transparent disciplinary procedure.
Unit of measurement: yes-no
Level of information on 1. Public access to information on the effective performance of the Public Ministry
performance
(number of cases, number of indictments, etc.) and the use of financial resources
(budget allocated, budget spent, donations, etc.).
Unit of measurement: yes-no (an ordinal scale may be adopted: unrestricted access,
moderately restricted, restricted).
Citizen
access
to 1. Access by parties to actions undertaken by the Public Ministry (save where there are
actions undertaken
reasons of public interest which justify the secrecy of same)
Unit of measurement: yes-no
Publicising of conduct 1. Publication of standards of performance and ethical conduct to be observed by
criteria
police officers.
2. Existence of a procedure to register complaints for breach of professional duties by
public prosecutor.
3. Existence of transparent disciplinary procedure.
Unit of measurement: yes-no
Level of information on 1. Public access to information on the effective performance of the police (number of
performance
cases, number of indictments, etc.) and the use of financial resources (budget
allocated, budget spent, donations, etc.).
Unit of measurement: yes-no (an ordinal scale may be adopted: unrestricted,
moderately restricted, restricted access).
UNIT OF
VARIABLE
INDICATORS AND UNIT OF MEASUREMENT
1. Analysis of laws, official gazettes, press and mass media; direct
observation in public prosecutor’s offices.
2. Direct observation in public prosecutor’s offices, Lower and
Magistrate’s Courts. Questionnaires or interviews with judges, public
prosecutors, judicial staff and lawyers; analysis of laws.
3. Questionnaires or interviews with experts, public prosecutors, judges,
judicial staff and lawyers. Direct observation.
1. Questionnaires or interviews with experts, public prosecutors, judges
and judicial staff. Simulation (application for information on bodies
tasked with the statistics and financial administration of the Public
Ministry).
1. Questionnaires or interviews with users, experts, public prosecutors,
judges and judicial staff. Direct observation in public prosecutor’s offices.
1. Analysis of laws, official gazettes, press and mass media; direct
observation in police departments.
2. Direct observation in police departments. Questionnaires or interviews
with judges, public prosecutors, police and lawyers. Analysis of laws,
decrees and edicts.
3. Questionnaires or interviews with experts, police, public prosecutors,
judges, judicial staff and lawyers. Direct observation.
1. Questionnaires or interviews with experts, public prosecutors, judges
and judicial staff. Simulation (application for information on bodies
tasked with the statistics and financial administration of the police).
SOURCE
ANALYSIS
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Public
defence
Prison
system
Legal
professions
UNIT OF
Publicising of conduct 1. Publication of standards of performance and ethical conduct to be
criteria
observed by public defenders.
2. Existence of procedure for registering complaints about any breach by
public defenders of their professional duties.
3. Existence of transparent disciplinary procedure.
Unit of measurement: yes-no
Level of information on 1. Public access to information on the effective performance of the Public
performance
Defence (number of cases, number of cases per defender, etc.) and the use
of financial resources (budget allocated, budget spent, donations, etc.).
Unit of measurement: yes-no (an ordinal scale may be adopted: unrestricted
access, moderately restricted, restricted).
Publicising of conduct 1. Publication of standards of performance and ethical conduct to be
criteria
observed prison officers.
2. Existence of procedure for registering complaints about any breach by
prison officers of their professional duties.
3. Existence of transparent disciplinary procedure.
Unit of measurement: yes-no.
Level of information on 1. Public access to information on the effective performance of the prison
performance
system (number of detainees in preventive detention, number of detainees
serving prison sentences, number of prisons and detention centres, etc.) and
the use of financial resources (budget allocated, budget spent, donations,
etc.).
Unit of measurement: yes-no (an ordinal scale may be adopted: unrestricted,
moderately restricted, restricted access)
Degree of accessibility Public and private defenders have easy access to and communication with
to detainees enjoyed by detainees.
lawyers
Publicising of conduct 1. Publication of standards of performance and ethical conduct to be
criteria
observed by lawyers and other legal professions (notaries).
2. Existence of procedure for registering complaints about any breach by
lawyers and other legal professions of their professional duties.
3. Existence of transparent disciplinary procedure.
Unit of measurement: yes-no.
Level of information on 1. Public access to information about the number of lawyers registered or
number of lawyers
authorised.
2. Open access to members of professional associations about the correct
use of financial resources.
Unit of measurement: yes-no (an ordinal scale may be adopted: unrestricted,
moderately restricted, restricted access).
VARIABLE
INDICATORS AND UNIT OF MEASUREMENT
1. Analysis of laws, official gazettes, press and mass media; direct observation in
public defence offices.
2. Direct observation in public defence offices, public prosecutor’s offices and Lower
and Magistrate’s Courts. Questionnaires or interviews with public defenders, judges,
public prosecutors, judicial staff and lawyers. Analysis of laws.
3. Questionnaires or interviews with public defenders, users and lawyers. Direct
observation.
1. Questionnaires or interviews with experts, public defenders, judges and judicial
staff. Simulation (application for information on bodies tasked with the statistics and
financial administration of the Public Defence).
1. Analysis of laws, official gazettes, press and mass media; direct observation in
prisons and detention centres.
2. Direct observation in prisons and detention centres. Interviews with detainees,
public defenders, judges, police, prison officers and human rights organisations.
3. Questionnaires or interviews with detainees, public defenders, prison officers,
lawyers and human rights organisations. Direct observation.
1. Questionnaires or interviews with public defenders, experts, prison officers,
judges, human rights organisations and judicial staff. Simulation (application for
information on bodies tasked with the statistics and financial administration of the
prison system).
1. Questionnaires or interviews with public defenders, experts, prison officers,
human rights organisations, judges and judicial staff.
1. Analysis of laws, official gazettes, press and mass media; direct observation in
bar associations.
2. Direct observation in bar associations. Interviews with lawyers and users.
3. Questionnaires or interviews with lawyers, judges and users. Direct observation.
1. Questionnaires or interviews with lawyers and experts. Simulation (application for
information on bodies tasked with the statistics of lawyers).
SOURCE
ANALYSIS
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Society civil
Existence of NGOs
active in seeking
accountability
1. Existence of citizen organisations (NGOs, civil associations, companies,
mass media, etc.) which actively participate and monitor the performance and
legality of the bodies in a judicial system. (Alternative indicator: Number of
citizen organisations that actively participate).
Unit of measurement: yes-no (alternative indicator: interval).
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3. Questionnaires or interviews with experts, lawyers and human rights
organisations. Issue briefs and studies.
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4.3. DIMENSION 3: CONTROL
Analysis of the judiciary as an organ of control means ascertaining to what extent the remaining
organs of state hold themselves accountable to the justice department. This is the opposite side of
accountability of justice. The other powers must be answerable to justice.
Control derives from the concept of accountability. Indeed, the mechanisms of control designed
for accountability can be classified on the basis of two criteria: the locus or site at which
accountability is directed; and the scope of jurisdiction. In terms of locus, one can discern
horizontal mechanisms, set up between State institutions (reciprocal internal control), and vertical
mechanisms, set up between citizens and State institutions. The latter can, in turn, be further
subdivided into those of an institutional and those of a social nature (social accountability)
(Smulovitz and Peruzzotti, 2002).
In terms of scope of jurisdiction, control mechanisms are classified into three groups: political,
legal and administrative. Political control encompasses mechanisms intended to ensure fulfilment
of election promises and goals proposed by the government, as well as to exercise public scrutiny
of governmental actions on behalf of all citizens. Legal control comprises mechanisms for
controlling the lawfulness of state-sponsored actions. Administrative control includes mechanisms
for supervising the degree to which the operation of public institutions complies with both the
administrative provisions that govern them, and the outcome and performance targets set by the
relevant public authority (State of the Nation Project, 2003). An explanatory layout of the scope
and locus of accountability is shown below:
MECHANISMS OF ACCOUNTABILITY AND REPRESENTATIVE EXAMPLES
LOCUS
HORIZONTAL
VERTICAL
INSTITUTIONAL
SOCIAL
POLITICAL
Parliament (commissions of
Elections, plebiscites, Mass media, civic
enquiry, questions in the
referenda, removal
organisations, political
House), Ombudsman
from office
parties
LEGAL
Judiciary, senior supervisory
N/A
N/A
bodies
(comptroller’s offices,
Auditors’ Courts)
ADMINISTRATIVE Senior supervisory body,
N/A
N/A
internal audits
N/A (not applicable)
SCOPE
Source: State of the Nation Project, 2002c, based on Smulovitz and Peruzzotti, 2002; O’Donnell, 2001 and Beetham,
1994.
Accordingly, the control that a judicial system exercises over the remaining branches or organs of
state comes within the legal sphere and is horizontal in nature.
While this dimension of analysis has diverse theoretical origins, it is fundamentally rooted in the
theoretical reflexions surrounding the Rule of Law. Under the Rule of Law no organ is “de legibus
solutus” (O’Donnell, 2001, 2001b, 2000). This means that both the legislative and the executive
branches must be controlled to ensure that they comply with the rules which govern their
operation. Not only do individual administrative acts and orders (mandated by the executive) fall
within this category and require judicial control, but this also applies to general enactments
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(regulations -also mandated by the executive branch- and statutes), as well as the conduct of civil
servants and public officials.
In line with the above, a distinction can be drawn between three types of judicial control, which
shape the components and units of assessment that will have to be evaluated:
1) control of constitutionality;
2) control of administrative legality; and,
3) punishment of offences or acts of corruption on the part of civil servants.
1) Control of constitutionality: The subject matter of this component involves jurisdictional control
of the constitutionality of laws, i.e., the jurisdictional mechanism devised for the defence of
constitutional supremacy. Put another way, it refers to the specific system of the constitutionality
of laws, the way in which these comply with those of constitutional hierarchy.9 The principle of
constitutional supremacy implies that the constraints that this imposes on political power are not
exceeded and that, in the event that this should occur, mechanisms are in place to protect the
content of the Constitution, by rendering void or doing away with any acts or actions contrary to
the constitutional system. This mechanism enables any laws running counter to the overriding
principle to be expelled from the legal system, or at all events, not to be applied to the specific
case, depending on the model of constitutional justice adhered to. An element that must be borne
in mind for measurement of this component consists of ascertaining whether there are matters
which the High or Lower Court refuses to declare unconstitutional on the grounds that they are
not subject to judicial review (political matters falling outside the ambit of the courts).
2) Control of administrative legality: As indicated above, the acts of the public administration must
adhere to the rules laid down by the principle of legality or “rule of law”. Where any act strays
from these lines, or where a presumably aggrieved citizen feels this to be so, there are means
whereby society may force it to resume its lawful course. These means are known as systems of
control of the legality of administrative acts. There are three such systems that deal with cases
involving control of administrative orders (or, possibly, acts):10
In this regard, it is illuminating to note that the existence of a constitutional jurisdiction within a political system
signalled the culmination of the process of development of the Rule of Law, whereby a legal Rule of Law became a
“constitutional” Rule of Law (García Pelayo, 1991: 3029). The characteristic of the former is that it essentially
highlighted the principle of lawfulness of administration, namely, the primacy of formal law over all organs of the
State, rendered effective by the courts in two ways:
- by means of a motion to vacate, the principle of legality is ensured vis-à-vis the judicial decisions of courts
of the first instance, through creation of special Courts of Appeal hearing appeals for annulment (known in
Spain as Courts of Cassation); and,
- by means of judicial review (contentious-administrative jurisdiction).
What is involved, both in annulment appeals and administrative jurisdiction, is the establishment of legal instruments
that enable respect for, submission to and compliance with the principle of supremacy of the law enacted by
Parliament (González Montenegro, 1997: 3).
Yet under these sole two mechanisms, the authority of the law was never questioned, nor was the decision of the
organ that sanctions same, controlled. This was, at all events, a Rule of Law determined by formal law. This is
reason underlying the assertion that the legal Rule of Law was superseded by the institution of mechanisms of
constitutional control of laws. Thus, statute as the primordial source of Law was displaced and hierarchically
subordinated to the Constitution, becoming subject to the latter like the remaining rules in the legal system.
10 It should be pointed out here that administrative acts may also be the subject of judicial challenge, though the
pertinent requirements and mechanisms tend to vary significantly. For instance, a distinction that can be drawn
between orders and acts is that nullity or annulment is the sanction to be first applied to the former, whereas in the
latter case, rather than being annulled, these will in all cases generate liability on the part of the administration and,
with luck, a judicial decision ordering certain actions or services to be undertaken or rendered. Insofar as orders are
concerned, however, apart from the possible consequence of liability, the first and basic sanction is that of nullity or,
9
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1. Legislative control. Also known as political control, in which responsibility falls upon a
public official, who is normally called the Ombudsman, Defender of the People, or Human
Rights Commissioner, and is usually appointed by the legislative branch to hear
complaints lodged by citizens regarding abusive or improper administrative acts and
orders.
2. Judicial control. Undertaken by the judiciary in cases in which this comes within its
jurisdiction for the control of administrative acts, under a dispute resolution system,
known in Spain as judicial review (juicio contencioso-administrativo), and in a number of
other countries as an appeal for legal protection (amparo).
3. Self-regulation. Here one is confronted by the most interesting mechanism, since, as its
very name implies, it is the means whereby the public administration verifies and
monitors the lawfulness of its own acts.
In line with the stated purpose of this handbook, focused exclusively on the justice sector and not
on an overall analysis of the democratic Rule of Law, of the three forms of control of legality of
administrative acts, account will solely be taken of the second. This form of control is, moreover,
crucially important in what it does to the operation of the Rule of Law. Judicial control of
administrative acts, it should be stressed, usually takes place on termination of appeal
proceedings held within the administrative organ (executive branch). Such proceedings conclude
with the issue of a decision that penalises or prejudices a party. In almost all countries subjected
to a Rule of Law, the law affords this party the chance to have recourse to jurisdictional organs
(special Courts of Appeal or the like), so that the matter giving rise to said grievance may be
discussed within the context of an established procedure. This procedure is known as judicial
review and, through it, disputes stemming from a decision or action which has been taken by the
public administration and has affected individual rights and interests, are settled judicially.
In some countries there are so-called Administrative Courts, which hear specific disputes between
citizens and the State. The difference between these and Spain’s “contentious-administrative”
courts resides in the fact that the former form part of the administration (the foundation for this, it
seems, is a radical notion of the principle of separation of functions, whereby the law courts are
barred from intervening in affairs of the administration), whilst the “contentious-administrative”
courts form part of the judiciary. Nevertheless, the function fulfilled by the former is really
jurisdictional, in that they resolve disputes between parties.
The existence of administrative organs with power to settle disputes between private parties and
the State involving issues of a specifically public administration nature, and whose decisions may
not be taken on appeal and dealt with satisfactorily by the courts, constitutes a serious shortcoming
for full horizontal accountability.
Source: in-house
3) Punishment of offences committed by civil servants or public officials:
This component seeks to ascertain the degree to which the courts effectively punish offences
committed by public officials in the performance of their duties. The difference from control of
administrative acts and orders lies in the fact that here the liability that is in play is “penal”,
whereas what is in play in judicial review is the validity of an act and, at all events, financial
liability (without prejudice to it being made clear that the conduct of the official who issued the
order or committed the administrative act may give rise to criminal sanctions). It should be said
that in the analysis of this component, account will only be taken of the way in which the criminal
where applicable, substitution of the order. (For more differences, see Gordillo, Tratado de Derecho Administrativo,
5th Edition, Buenos Aires, 2000. Chapter 3.)
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courts categorize types of conduct specifically defined as public-function-related “offences”, and
to what extent they are effective in this task.11
On the basis of the above, the following variables and standards have been drawn up.
VARIABLES AND STANDARDS
JUDICIARY
STANDARD
1.The judiciary has the power to rule on the constitutionality of legislation
and decrees.
2. Decisions as to the constitutionality of legislation and decrees are
obligatory and are complied with. No matters are excluded from control of
constitutionality.
3. The judiciary has the power to review the lawfulness of administrative
actions, and force the judiciary to act where there is an obligation to do so.
4. If there are administrative organs with power to settle disputes between
private parties and the State involving issues of a specifically public
administration nature, any decisions handed down by such bodies can be
taken on appeal and dealt with satisfactorily by the courts.
Effectiveness of punishment 5. The criminal courts effectively punish offences committed by civil
of corruption
servants and public officials in the course of their duties, who do not go
unpunished.
VARIABLE
Existence of control of
constitutionality
Degree of compliance with
decisions of the judiciary visà-vis constitutionality
Existence of judicial review
of administrative legality
Judicial review of decisions
concerning disputes between
the State and private parties
11 To give an idea of the content of this component, it may be enlightening to mention some examples of types of
offences usually stipulated by criminal law: misappropriation, unlawful enrichment by civil servants, advantage taken
of public works or services by civil servants, negotiation incompatible with the holding of a public post, improper
intervention in contractual processes, destruction or mutilation of documents by civil servants, bribery, undue
influence, negligence in the performance of duties, and the like.
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INDICATORS
UNIT OF
VARIABLE
INDICATORS AND UNITS OF MEASUREMENT
SOURCE
Existence of
constitutional control
1. Control of constitutionality is statutorily or
constitutionally regulated.
Unit of measurement: yes-no
1. There is no case precedent that excludes
certain political matters or issues from
constitutional control.
Unit of measurement: yes-no
3. Number of cases per year in which an
enactment or official order is held to be
unconstitutional. (Alternative indicator: ratio of
number of cases to the regional mean)
Unit of measurement: interval.
1. Statutory or constitutional regulation of
control of legality of administrative acts and
orders.
2. Number of administrative orders revoked or
annulled per year
1. Analysis of laws and constitutions
ANALYSIS
Constitutional
justice
(Supreme or
Constitutional
Court)
Degree of compliance
with the decisions of
the judiciary in matters
relating to
constitutionality
Justice in terms Existence of judicial
of judicial review review of
(“contentiousadministrative legality
administrative“
jurisdiction).
Existence of judicial
review of decisions
concerning disputes
between the State and
private parties
UNIT OF ANALYSIS
VARIABLE
1. Existence of administrative organs with
jurisdictional powers, without subsequent
judicial control.
Unit of measurement: yes-no
INDICATORS AND UNITS OF MEASUREMENT
Interviews with experts
2. Analysis of case precedents, issue briefs and studies.
3. Statistical records of Supreme or Constitutional Courts . Issue briefs and
studies.
1. Analysis of laws and constitutions.
Interviews with experts
2. Statistical records of judicial review courts. Issue briefs and studies.
1. Analysis of statute law, case law and doctrine. Interviews with experts,
lawyers and judges.
SOURCE
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Criminal justice
(Criminal courts)
Effectiveness of
punishment of corruption
1. Existence of specific public-prosecution units to
combat corruption within the public administration.
Unit of measurement: yes-no
2. Number of public officials indicted, in preventive
detention and serving prison sentences, per year
and per region.
Unit of measurement: interval.
3. Percentage of public officials punished over
number of public officials indicted, per year.
Unit of measurement: interval
4. Difference between number of public officials
indicted, with preventive detention, and punished,
over the regional mean.
Unit of measurement: interval
1. Analysis of laws, interviews with experts, public prosecutors, judges and lawyers.
2, 3 and 4. Statistical records of courts and prisons. Issue briefs and studies.
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DIMENSION 4: EFFICIENCY/EFFICACY
Analysis of efficiency/efficacy seeks to ascertain to what extent the response capability of one or
more judicial organs (supply: budget, administrative staff, infrastructure, equipment, time) is
adequate to its workload (demand) in order to achieve the expected results.
In economic analysis, assessment of efficiency seeks to ascertain to what measure the operation
of a service serves to maximise social welfare; and social welfare is defined as the difference
between the benefits to be derived from an activity and the costs incurred in undertaking it
(Gutiérrez Junquera, 1998: 206). This idea is fully applicable to the evaluation of a judicial
system. It should be said here that assessment of the efficiency of a judicial system is understood
to mean the difference between the benefits yielded by the service of dispensing justice and the
costs demanded by such an activity. It involves endeavouring to ascertain, for instance, whether
the money spent by the State on justice is enough to afford a quality service, whether the number
of judges, public prosecutors, defenders and judicial staff is sufficient to attend to the inflow of
cases, whether the duration of judicial proceedings is reasonable, whether judicial decisions are
in accordance with the law, whether judges are adequately trained to carry out their duties,
whether the average number of cases concluded in relation to those filed is high, and many
others aspects. In this sense, a judicial system is efficient and effective where it performs
optimally and fulfils its tasks on the basis of an appropriate and profitable use of available
resources.
Historical context and bars to the generation of efficiency indicators
It can be said that in the 1980s a shift took place in the concept of the role of the State. From a
State fundamentally concerned with providing a series of social services, there was a move to
recognition of the limits on the growth of public expenditure and concern for the efficiency and
quality of public services (Gutierrez Junquera, 1998: 222). This concern, however, proved more
intense in some areas than in others, and it was precisely in the area of justice where there was the
greatest lag in the construction of efficiency indicators. One of the causes accounting for this lack
of concern may have been the variety of conflicts of interests involved in the operation of the
judicial system: aware of the cost entailed in building new courts, government agencies tend to
measure the efficiency of justice in terms of the duration of judicial proceedings or the percentage
of cases that lead to a criminal indictment; aware of the judicial function, judges tend to stress
matters of substance (arriving at a judicial decision that is just and in accordance with the law) or
fulfilment of the procedural rules; and lastly, aware of the public concern surrounding citizen needs,
the mass media tend to pay attention to the cost of access and the duration of court cases. In each
and every case, the controversy as to which of the above ought to be the efficiency indicators is
tainted by concerns surrounding the precise function of the courts, something that hinders debate
and the generation of constructive solutions.
In the early 1990s, this situation began to change. In this respect, countries such as Australia and
the USA were the first to identify the goals and functions expected of a justice system and to draw
up mechanisms for assessing same.
The problem facing measurement of this dimension resides in the fact that the results expected of
a judicial system are not –or are only superficially- quantifiable, and much less so in strictly
monetary terms. This is so because one cannot know what it is that is expected of a judicial
system, if no clear answer is given beforehand as to what the goals of same should be, and the
determination of such goals depends on theoretically ideal or value criteria that can very seldom
be translated into quantitative terms. This means two things: questions regarding the essence of
an effective judicial system are invariably linked to a reflexion as to the goals and basic functions
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of same (Weatherburn, 1996: 2); and such goals are not always measurable in economic or
quantitative terms.12 For example, some authors maintain that the factors that contribute to
minimisation of expense do not necessarily make for enhanced protection of human rights, and
in some case may even undermine this. A Lower or Magistrate’s Court may be expeditious
because it is not overburdened and uses its resources reasonably, and yet do so by force of
dismissals or arbitrary decisions. In such a case, this court could be said to be efficient because it
minimised costs, but could not be said to be effective because it failed to achieve the results
implicit in its designated function; or vice-versa, i.e., a legally sound judicial decision handed
down, for example, twenty years after the event would rarely be a “just” judicial decision, even if
the legal arguments expounded and the weighing-up of the evidence were impeccable.
In the light of these remarks, three areas or aspects can be distinguished in this dimension,
aspects which are inextricably linked but which, if evaluated in isolation, would risk proving
misleading.
-
Cost-productivity analysis.
Analysis of the duration of services.
Analysis of the quality of the process and product.
Cost-productivity analysis seeks to ascertain to what extent a given service minimises costs and
maximises productivity in quantitative terms. In other words, one is trying to establish in what
measure resources or inputs allocated (general budget allocation, number of judges, technical
equipment, number of judicial staff, number of public defenders, number of public prosecutors,
number of lawyers, number of prisons, etc.) are adequate to meet (in quantitative terms) the
respective workloads of the organs subjected to assessment (number of cases filed, number of
persons in detention or serving prison sentences, number of people demanding free legal
services, etc.).
In contrast, analysis of the duration of services seeks to ascertain the time required to perform a
given judicial service and to identify the bottlenecks.
Finally, analysis of the quality of the process and product seeks to ascertain to what extent these
are in line with what is expected of them (e.g., judicial proceedings should comply with the rules
of due process, or a judicial decision should enforce legally recognised rights),13 and to what
extent they meet the expectations of users. Quality levels include: on the one hand, physical and
more easily observable aspects, such as the workplace and material means available; and on the
other, aspects relating to training and human resources, such as the type of qualification held by
judges and staff in the Lower and Magistrate’s Courts and their capacity to process the actions
filed. All these aspects determine the quality of the outputs.
12 In economic language, assessment of this dimension could be said to fall within what is known as a type of “costeffective” analysis (Gutierrez Junquera, 1998: 220), which is used in the evaluation of service-provider agencies
when it is impossible to obtain monetary indicators of the benefits generated.
13 It should nevertheless be stressed that no general consensus exists as to the minimal, sufficient set of rights which
ought to be recognised by law. Some are undeniably universal in nature (e.g., the right: to life and physical integrity;
to inherent moral dignity of the human person; to freedom of thought and expression; to freedom of religion and
beliefs with external manifestation of worship; to freedom of assembly and association; to vote and be elected; to due
legal process; to freedom of movement and inviolability of the home or correspondence; to equality before the law;
and many more). Others, in contrast, arouse more reservations (e.g., freedom of access to public documents,
freedom of sexual expression, the right to bear arms, freedom from capital punishment, the right to vote for legal
aliens, the right to receive education in a foreign language), and are unequally distributed even in western nations.
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The precision of standards calls for some type of explanation. The use of adjectives such as
“reasonable”, “not costly”, “adequate” or “good”, applied to standards of efficacy and efficiency
inevitably leads to imprecision and confusion. It is extremely difficult, however, to establish more
precise criteria outside the geographical and time frame in which observation takes place. For
instance, how to determine “when the duration of a court case is reasonable” depends on the
historical and geographical context, as well as the type of offence. A year may be a reasonable
period of time in some contexts and some offences, and yet be very long in others. In this
respect, comparison between cases located in the same geographical context may be one way of
resolving this problem.
Tension between the rise in litigation, access to justice and efficiency.
The processes of democratisation, growing urbanisation and adoption of market reforms have
generated a rise in the demand for justice and increased the complexity of social relationships
(Buscaglia, 1997). In the first case, this is due to growing awareness of political and social rights; in
the second, it is due to the rise in the lack of public safety; and in the third, it is due to the
complexity of and increase in trade. This situation renders it even more essential to put in place a
judicial system that is efficient and effective, meaning that supply must be able to meet this growing
demand. Nevertheless, this rise in litigation may in itself be seen as an indicator of higher levels of
access to justice in societies which previously had high levels of crimes and offences that were not
integrated within the judicial system. To find the optimal point in this difficult balance is, without
doubt, one of the aims of all judicial systems.
Based on these considerations, the following variables and standards have been drawn up and
organised as follows:
VARIABLES AND STANDARDS
Quality
analysis
JUDICIARY
STANDARD
1. Judge selection criteria are stipulated, published, followed in practice, relevant
for the type of work envisaged, and incorporate exclusions (with effective
controls) for those who have, counting against them, a criminal record, pending
court cases, or disciplinary actions for professional misconduct.
Standards of 2. There are standards of efficiency (number of cases heard, average duration,
efficiency
average number of judicial decisions subject to being set aside on appeal, service
to users, etc.), and these are periodically evaluated to help judges improve their
performance, as well as to act as a basis for relevant decisions governing renewals
of term of office, promotions, transfers and discipline.
Promotions
3. Promotions, transfers, and/or renewals of term of office are based on
and transfers meritocratic criteria (fulfilment of standards of performance), are public and
transparent, and, where denied or rejected, a transparent appeal procedure is
available.
Legal training 4. Judges are required to be university law graduates and possess the necessary
training and experience to exercise the functions to be performed. Once
appointed, there are continuous training programmes, and participation in same is
facilitated and encouraged.
Judicial
5. Judicial salaries are high enough to attract qualified personnel, enable them to
salaries
maintain their families, and live in a reasonably safe environment, without having
to resort to other sources of income.
Internal
6. Judges conduct court cases in a regulated fashion in the framework of uniform,
administration objective and transparent rules.
Judicial
7. Judicial decisions are in accordance with the law.
decisions
Enforcement 8. In cases where judicial decisions are not obeyed, judges have the means to
of judgements enforce same.
VARIABLE
Selection and
appointment
of judges
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Staff selection
and
promotion
Staff training
Budget
Time
Costproductivity
analysis
Quality
analysis
Time
9. Administrative staff are selected and promoted on the basis of a transparent
merit-based procedure.
10. Administrative staff are provided with adequate training.
11. The judiciary has real and meaningful opportunities to influence the
determination of the budget to be allocated by the legislature or government.
Law courts
12. The law courts and seat of the judiciary are conveniently situated, can be easily
found and provide a respectable environment with an adequate infrastructure for
the provision of judicial services (for example, there is acceptable means of public
transport for getting there).
Duration of 13. The time taken by judicial proceedings, from commencement to conclusion, is
judicial
reasonable.
proceedings
Capacity and 14. Provision of staff, equipment and judicial officials to judges and administrators
equipment
is sufficient to ensure that they can perform their functions well and is
comparable to the rest of the public sector.
Internal
15. Internal distribution of resources is based on the respective needs and
distribution of workload of the different bodies, rather than on reasons of internal policy.
resources
Workload
16. Judges are reasonably efficient in substantiating court cases. Judges are
empowered to expedite the progress of cases and punish those who occasion
unnecessary delays. In addition, there are alternative dispute-resolution
mechanisms.
Assignment of 17. Cases are assigned in obedience to an objective procedure, which leads to an
cases
equitable distribution of the workload.
Budget
18. The budget allocation is sufficient to attend to the judiciary’s work demands.
PUBLIC MINISTRY
STANDARD
1. The selection criteria for public prosecutors are stipulated, published, followed
in practice, relevant for the type of work envisaged, incorporate exclusions (with
effective controls) for those who have, counting against them, a criminal record,
pending court cases, or disciplinary actions for professional misconduct.
2. There are standards of efficiency (number of cases investigated, duration of
investigations, etc.) and these are periodically evaluated to help public prosecutors
improve their performance, as well as to act as a basis for relevant decisions
governing renewals of term of office, promotions, transfers and discipline.
Promotions
3. Promotions, transfers, and/or renewals of term of office are based on
and transfers meritocratic criteria (fulfilment of standards of performance), are public and
transparent, and, where denied or rejected, a transparent appeal procedure is
available.
Training
4. Public prosecutors are required to be university law graduates and possess the
necessary training and experience to exercise the functions to be performed. Once
appointed, there are continuous training programmes, and participation in same is
facilitated and encouraged.
Salaries
5. Public prosecutors’ salaries are high enough to attract qualified personnel,
enable them to maintain their families, and live in a reasonably safe environment,
without having to resort to other sources of income.
Internal
7. Public prosecutors conduct their investigations in a regulated fashion in the
administration framework of uniform, objective and transparent rules.
Indictments
8. Indictments assess the evidence correctly and are legally consistent.
Public
9. Public Ministry premises are conveniently situated, can be easily found and
prosecutor’s
provide a respectable environment with an adequate infrastructure.
offices
Judicial
10. Time involved in the prosecution-led investigation stage is reasonable.
proceedings
VARIABLE
Selection and
appointment
of public
prosecutors
Standards of
efficiency
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Costproductivity
analysis
Quality
analysis
Time
Costproductivity
analysis
Quality
analysis
Capacity,
equipment
and workload
Internal
distribution of
resources
Assignment of
cases.
Budget
VARIABLE
Selection and
appointment
of police
officers
Standards of
efficiency
13. Cases are assigned in obedience to an objective procedure, which leads to an
equitable distribution of the workload.
14. The budget allocation is sufficient to attend to the Public Ministry’s work
demands.
POLICE
STANDARD
1. Criteria for admittance to the police force incorporate exclusions (with
effective controls) for those who have, counting against them, a criminal record
or criminal cases pending.
2. There are standards of efficiency and these are periodically evaluated to help
the police improve their performance, as well as to act as a basis for relevant
decisions governing renewals of term of office, promotions, transfers and
discipline.
Promotion
3. Promotions and transfers are based on meritocratic criteria (fulfilment of
and transfers standards of performance), are public and transparent, and, where denied or
rejected, a transparent appeal procedure is available.
Training
4. Police officers are required to have adequate training to exercise the functions
to be performed. Once appointed, there are continuous training programmes,
and participation in same is facilitated and encouraged.
Judicial
5. Police officers’ salaries are high enough to enable them to maintain their
salaries
families, and live in a reasonably safe environment
Police stations 6. Police stations are conveniently situated, can be easily found and provide a
respectable environment with an adequate infrastructure.
Detentions
7. Detentions are justified and lawful.
Detentions
8. The duration of detentions is reasonable (from the time when a person is
detained until the time when he is provided with a defence counsel or comes up
before a judge with power to rule on the legality of the detention).
Capacity,
9. Provision of premises, number of police, staff, equipment to the police is
equipment
sufficient to ensure that they can perform their functions well and is comparable
and workload to the rest of the public sector.
Internal
10. Internal distribution of resources is based on the respective needs and
distribution of workload of the different bodies, rather than on reasons of internal policy.
resources
Budget
11. The budget allocation is sufficient to attend to the police’s work demands
VARIABLE
Selection and
appointment
of prison
officers
Training
Prisons
Time
11. The number of public prosecutors and amount of equipment and personnel
supplied to the Public Ministry is sufficient to ensure that it can perform its
functions well and handle the workload.
12. Internal distribution of resources is based on the respective needs and
workload of the different bodies, rather than on reasons of internal policy.
Duration
preventive
detention
PRISON SYSTEM
STANDARD
1. Criteria for admittance to the prison service incorporate exclusions (with
effective controls) for those who have, counting against them, a criminal record or
criminal cases pending.
2. Prison officers are required to have adequate training to exercise the functions
to be performed.
3. Prisons and detention centres are conveniently situated, can be easily found and
provide a respectable environment with an adequate infrastructure.
of 4. The duration of preventive detention is reasonable.
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Costproductivity
analysis
Quality
analysis
Capacity and
equipment
Budget
VARIABLE
Selection and
training
of
defenders
Defence
Costproductivity
analysis
Quality
analysis
Costproductivity
analysis
5. Provision of premises, staff, and equipment is sufficient to ensure that they can
perform their functions well.
6. The budget allocation is sufficient to attend to work demands.
Capacity,
equipment
and workload
Budget
VARIABLE
Entry to the
profession
Quality of
legal
education
Ethics code
PUBLIC DEFENCE
STANDARD
1. Public defenders are required to be university law graduates and possess the
necessary training and experience to exercise the functions to be performed.
Once appointed, there are continuous training programmes, and participation in
same is facilitated and encouraged.
2. The defence provided by public defenders is of comparable or better quality
than that provided in the private sector.
3. The number of defenders, premises, equipment and staff supplied is sufficient
to ensure that they can perform their functions well and handle the workload.
4. The budget allocation is sufficient to attend to work demands.
LEGAL PROFESSIONS
STANDARD
1. Lawyers and notaries have received a university legal education and are required
to have passed the necessary examinations to obtain a university degree.
2. The legal education offered by the country’s universities is of high quality and
trains lawyers and notaries to exercise the profession proficiently.
3. There are laws and an ethics code that govern the profession. These rules are
widely known, observed and are enforced in case of breach.
Demand for 4. The number of lawyers and notaries is sufficient to cater to the demand for
legal
services in each region.
services
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UNIT OF ANALYSIS
VARIABLE
Judiciary
Selection of judges
Standards of efficiency
Promotion and transfers
Legal training
Judicial salaries
Internal administration
Judicial decisions
Enforcement of
judgements
Staff selection and
promotion
Staff training
Budget
UNIT OF ANALYSIS
VARIABLE
INDICATORS AND UNIT OF MEASUREMENT
1. Existence of job-relevant merit criteria for selection of judges, criteria which
are followed in practice.
1. Publication or absence of publication of standards of efficiency.
2. Existence or absence of evaluations of fulfilment of standards of efficiency.
3. Annual percentage of judges whose performance is formally assessed (in
writing).
1. Existence or absence of promotions, transfers or renewals on a meritocratic
basis.
2. Percentage of satisfactorily evaluated judges who have been promoted,
transferred or had their term of office renewed.
1.·Statutory duty to have successfully completed a university law degree for
entry into the judiciary.
2. Frequency of judiciary-sponsored training courses.
3. Average number of judges who receive training courses per year.
1-Amount of salary received by judges, by category.
2. Comparison of salaries against those of other public functions and other
posts in the private sector.
Unit of measurement: interval
1. Percentage of judges that keep a publicly accessible agenda showing the
timetables of court hearings.
2. Existence or absence of computerised follow-up systems of court cases
(alternative: number of judges that have computerised case follow-up
systems).
1. Percentage of judicial decisions in which irregularities are detected in the
interpretation of the law, weighing-up of the evidence, and logical and legal
summing-up and discussion of the arguments.
2. Percentage of judicial decisions set aside of the total taken on appeal,
including those appealed on grounds of annulment or unconstitutionality.
1. Legal recognition of powers so that judges may enforce their decisions.
1. Existence or absence of a merit-based selection and promotion procedure
for judicial staff.
2. Percentage of judicial staff selected via merit-based and competitive
procedures.
1. Frequency of judiciary-sponsored training courses for judicial staff.
2. Average number of judicial staff who receive training courses per year.
1. Existence or absence of opportunities for the judiciary to influence the
determination of the budget.
INDICATORS AND UNIT OF MEASUREMENT
HANDBOOK FOR JUDICIAL DIAGNOSIS, PROGRAM PLANNING AND ASSESSMENT
SOURCE
Interviews with experts, surveys and direct observation.
Interviews with judges and experts. Assessment committee
reports, issue briefs and studies.
Interviews with judges and experts. Assessment committee
reports, issue briefs and studies.
Legal analysis, interviews with experts and judges. Official
reports
Official records of the body tasked with the financial
administration of the judiciary
1. Direct observation of a representative sample.
2. Interviews with experts, judges and judicial staff.
1. In-depth analysis of judicial decisions
representative sample. Issue briefs and studies.
covering
a
2. Official statistical records.
1. Legal analysis, interviews with experts.
1. Interviews with experts and judicial staff.
2. Official reports. Judge and staff surveys.
1. Official reports, interviews with experts and staff. Surveys.
Interviews with Supreme Court judges, judicial staff, experts and
law makers.
SOURCE
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Law courts
Judiciary
UNIT OF ANALYSIS
1. Average surface area in square metres of judicial offices, per jurisdiction.
2. Existence or absence of adequate services in the form of restrooms,
telephones, facilities for the handicapped, lighting, etc.
3. Percentage of users who state that they are satisfied with the environment
provided by the courts
Duration of judicial
Ratios:
proceedings
1. Average duration of judicial proceedings, by type of proceedings and
procedural stage
2. Percentage of cases pending out of total cases filed at the end of any given
period.
3. Percentage of cases that exceed a given length of time.
4. Average number of cases decided in a given period of time.
5. Amount of time spent by judge on administrative tasks.
Capacity and equipment Ratios:
Average population per judge (national population over number of judges).
Average number of cases filed per judge (number of cases over number of
judges).
Average number of cases filed per judicial staff member (number of cases
over number of judicial staff per Lower or Magistrate’s Court)
Average number of cases decided per judicial staff member.
Average number of computers per judge.
Amount of work material (paper, ballpoint pens, tables, chairs, etc.) per judge.
Internal distribution of 1. Existence or non-existence of equitable distribution of resources per
resources
category of judge and region.
2. Comparison of indicators of capacity and equipment per category of judge
and region.
Workload
Ratios:
Average number of cases decided out of total filed: number of cases
concluded, per type of conclusion (judicial decision, out-of-court settlement,
judicial ruling that brings proceedings to an end), over number of cases filed,
per type of case.
Assignment of cases
Comparison of workload of each judge per jurisdiction.
VARIABLE
INDICATORS AND UNIT OF MEASUREMENT
HANDBOOK FOR JUDICIAL DIAGNOSIS, PROGRAM PLANNING AND ASSESSMENT
1. Official reports.
2 Internal audit reports, direct observation.
3. User surveys.
1, 2, 3 and 4. Statistical records. Issue briefs and studies
covering representative samples.
Statistical records, official reports, issue briefs and studies.
Surveys.
1. Interviews with experts, judges and judicial staff.
2. Statistical records, official reports, issue briefs and studies.
Official records, issue briefs and studies.
Statistical records official, issue briefs and studies.
SOURCE
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Judiciary
Budget
Statistical records of body tasked with the financial administration.
Ratios:
Amount of expenditure allocated per case filed: budget allocated over procedural
workload.
% of country’s GDP earmarked for justice in relation to general State budget.
% of income coming from international aid in relation to State budget allocations.
Chronological follow-up of annual trend in available budget over the course of any
given period.
Average budget of a Lower or Magistrate’s Court
Ratio of justice-related expenditure per inhabitant: number of inhabitants over
budget allocated to justice
Public cost per judicial decision handed down
Public cost per type of case settled
Budgetary implementation: budget allocated over budget spent.
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UNIT OF ANALYSIS
VARIABLE
Public Ministry
Selection and
appointment of public
prosecutors
Standards of efficiency
Promotion and transfers
Training
Salaries
Internal administration
Indictments
Public prosecutors’
offices
Duration of judicial
proceedings at the
investigation stage
INDICATORS AND UNIT OF MEASUREMENT
SOURCE
1. Existence of job-relevant merit criteria for selection of public prosecutors Interviews with experts, surveys, direct observation.
criteria which are followed in practice.
1. Publication or absence of publication of standards of efficiency.
2. Existence or absence of evaluations of fulfilment of standards of efficiency.
3. Annual percentage of public prosecutors whose performance is formally
assessed (in writing).
1. Existence or absence of promotions, transfers or renewals on a meritocratic
basis.
2. Percentage of satisfactorily evaluated public prosecutors who have been
promoted, transferred or had their term of office renewed
1.·Stautory duty to have successfully completed a university law degree for
entry into the judiciary.
2. Frequency of judiciary-sponsored training courses.
3. Average number of public prosecutors who receive training courses per
year.
1-Amount of salary received by public prosecutors, by category.
2. Comparison of salaries against those of other public functions and other
posts in the private sector.
Unit of measurement: interval
1. Existence or absence of computerised case follow-up systems at public
prosecutor’s office (alternative: number of public prosecutors that have
computerised case follow-up systems).
1. Percentage of indictments in which irregularities are detected in the
interpretation of the law, weighing-up of the evidence, and logical and legal
discussion of the arguments.
2. Percentage of indictments not upheld in criminal trials.
3. Percentage of criminal judges that state that the indictments are of low
quality.
1. Average surface area in square metres of public prosecutors’ offices, per
jurisdiction.
2. Existence or absence of adequate services in the form of restrooms,
telephones, lighting, etc.
3. Percentage of users who state that they are satisfied with the environment
provided by judicial premises.
Ratios:
1. Average duration of the investigation stage at public prosecutor’s office.
3. Percentage of cases that exceed a given length of time.
4. Average number of indictments out of total cases filed in any given period of
time.
HANDBOOK FOR JUDICIAL DIAGNOSIS, PROGRAM PLANNING AND ASSESSMENT
Interviews with judges, public prosecutors and experts. Reports
of assessment committees, issue briefs and studies.
Interviews with public prosecutors, judges and experts. Reports
of assessment committees, issue briefs and studies.
Legal analysis, interviews with experts and judges. Official
reports
Official records of the body tasked with the financial
administration of the judiciary
1. Interviews with experts, judges and judicial staff.
1. In-depth analysis of indictments covering a representative
sample. Issue briefs and studies.
2. Official statistical records.
3. Surveys of judges.
1. Official reports.
2. Internal audit reports, direct observation.
3. User surveys.
1, 2, 3 and 4. Statistical records. Issue briefs and studies
covering representative samples.
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UNIT OF ANALYSIS
VARIABLE
Public Ministry
Capacity and equipment
Statistical records, official reports, issue briefs and studies.
Internal distribution
resources
1. Interviews with experts, public prosecutors, judicial staff.
2. Statistical records, official reports, issue briefs and studies.
Workload
Assignment of cases
Budget
INDICATORS AND UNIT OF MEASUREMENT
Ratios:
Average population per public prosecutor (national population over number of
public prosecutors), per region.
Average cases filed per public prosecutor (number of cases over number of
public prosecutors).
Average computers and official automobiles per public prosecutor.
Amount of work material (paper, ballpoint pens, tables, chairs, etc.) per public
prosecutor.
of 1. Existence or absence of equitable distribution of resources per category of
public prosecutor and region.
2. Comparison of indicators of capacity and equipment per category of public
prosecutor and region.
Ratios:
Average indictments to total cases filed.
Average crimes investigated to total reported.
Average indictments to total crimes investigated.
Average crimes reported in which a suspect is identified to total reported.
Average detentions to total cases filed.
Comparison of each public prosecutor’s workload per region.
Ratios:
Amount of expenditure allocated to the Public Ministry per case filed: budget
allocated over procedural burden.
% of country’s GDP allocated to the Public Ministry versus budget allocated to
judiciary and State.
% of income coming from international aid in relation to budgets allocated by
the State.
Chronological follow-up of the annual trend in available budget over the course
of any given period.
Average budget of a public prosecutor’s office.
Public cost per indictment.
Budgetary implementation: budget allocated over budget spent.
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SOURCE
Official records, issue briefs and studies.
Statistical records official, issue briefs and studies.
Statistical records of the body tasked with the financial
administration.
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UNIT OF
VARIABLE
INDICATORS AND UNIT OF MEASUREMENT
SOURCE
ANALYSIS
Police
Selection
and
career
appointments
Standards
of
efficiency
1. Criteria for admittance to the police force incorporate exclusions (with effective controls) for those who have, Interviews with experts, surveys and legal analyses
counting against them, a criminal record or criminal case pending.
2. There are standards of efficiency and these are periodically evaluated to help the police improve their Interviews with police, judges and experts. Reports of
performance, as well as to act as a basis for relevant decisions governing renewals of term of office, promotions, assessment committees, issue briefs and studies.
transfers and discipline.
Promotion and 3. Existence of promotions and transfers based on meritocratic criteria (fulfilment of standards of performance).
Interviews with police, judges and experts. Reports of
transfers
assessment committees, issue briefs and studies.
Training
4. Number of police-sponsored training courses per year.
Interviews with experts, police and civil servants. Issue
briefs and reports.
Salaries
5. Comparison of police salaries against the amounts received by public prosecutors and judicial staff, per country. Official records of the body tasked with financial
administration de la police
1. Official reports.
Police stations
1. Average surface area in square metres of police stations and number of same, per jurisdiction.
2. Internal audit reports, direct observation.
2. Existence or non-existence of adequate services in the form of restrooms, telephones, lighting, etc.
3. Percentage of detainees and users who state that they are satisfied with the environment provided by police 3. User surveys.
stations.
Detentions
1. Average number of writs of habeas corpus filed that conclude in a judicial decision which holds the police 1. In-depth analysis of judicial decisions covering a
detention to be null and void for being legally flawed.
representative sample. Issue briefs and studies.
Duration
of 1. Average time in days taken by a detainee to communicate with a defence counsel or to come up before a judge
detentions
for review of his detention.
Capacity and
Ratios:
equipment
Average population per police officer (national population over number of police officers), per region.
Average cases filed per police officer (number of cases over number of police officers).
Average number of automobiles per police officer.
1. Existence or absence of equitable distribution of resources per category of police officer and region.
Internal
2. Comparison of indicators of capacity and equipment per category of police officer and region.
distribution of
resources.
Budget
UNIT OF
VARIABLE
Ratios:
Amount of expenditure allocated to the police per complaint: budget allocated over workload of complaints
reported.
% of country’s GDP earmarked for the police in relation to general State budget.
% of income coming from international aid in relation to budgets allocated by the State.
Chronological follow-up of the annual trend in available budget over the course of any given period.
Average budget of a police station.
Budgetary implementation: budget allocated over budget spent.
INDICATORS AND UNIT OF MEASUREMENT
HANDBOOK FOR JUDICIAL DIAGNOSIS, PROGRAM PLANNING AND ASSESSMENT
2. Official statistical records.
1. Issue briefs and studies; direct observation.
Legal analysis, interviews with experts.
Statistical records, official reports, issue briefs and studies.
1. Interviews with experts, public prosecutors and judicial
staff.
2. Statistical records, official reports, issue briefs and
studies.
Statistical records of the body tasked with the financial
administration.
SOURCE
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ANALYSIS
Prison
system
UNIT OF
Selection and 1. Criteria for admittance to the prison service incorporate exclusions (with effective controls) for those who
career
have, counting against them, a criminal record or criminal cases pending.
appointments
Training
1. Number of training courses per year sponsored by the bodies tasked with prison administration.
2. Number of prison officers that have received training courses in the last two years.
Prisons
and 1. Average surface area in square metres of prisons and detention centres, and number of same, per
detention
jurisdiction.
centres
2. Amount of population serving prison sentences per prison.
3. Number of prisons and detention centres that exceed their maximum limit of capacity.
4. Existence or absence of adequate services in terms of restrooms, telephones, lighting, facilities
exclusively for women, appropriate visiting system, facilities suitable for women, etc.
5. Percentage of prison population serving terms of imprisonment who state that they are satisfied with the
environment provided by prisons and detention centres
Duration
of 1. Average length of preventive detention, by type of offence/crime.
preventive
detention
Capacity and 1. Average prison population per prison officer, per region.
equipment
2. Average population in preventive detention of the total population serving prison terms.
Budget
1. Amount of expenditure allocated to the prison system per inmate.
2. % of country’s GDP earmarked for the prison system in relation to general State budget.
3. % of income coming from international aid in relation to budgets allocated by the State.
4. Chronological follow-up of the annual trend in available budget over the course of any given period.
5. Average prison budget.
6. Budgetary implementation: budget allocated over budget spent.
VARIABLE
INDICATORS AND UNIT OF MEASUREMENT
Interviews with experts, surveys, legal analyses
Interviews with prison officers, official reports, issue
briefs and studies, surveys.
1. Official reports.
2. Internal audit reports, direct observation.
3. User surveys.
Statistical records, issue briefs and studies, and official
reports
Official records of the body tasked with the financial
administration of the police
Statistical records of the body tasked with the financial
administration.
SOURCE
ANALYSIS
Public
defence
Selection and 1. Public defenders are required to be university law graduates and possess the necessary training and
qualifications
experience to exercise the functions to be performed. Once appointed, there are continuous training
programmes, and participation in same is facilitated and encouraged.
Quality of
1. Percentage of judges or public prosecutors who state that the defence provided by public defenders is of
public defence comparable or better quality than that provided in the private sector.
2. Percentage of defendants who state that they are satisfied with the services provided by the public
defenders.
Capacity,
Ratios:
equipment and Average number of judicial decisions favourable to defendant out of total cases filed with the Public
workload
Defence Office.
Average cases handled per defender.
Average amount of population at the poverty level attended by each public defender.
HANDBOOK FOR JUDICIAL DIAGNOSIS, PROGRAM PLANNING AND ASSESSMENT
Interviews with experts, surveys, legal analyses
Surveys of judges, public prosecutors or users of the
public defence services.
Statistical records, issue briefs and studies, and official
reports
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Budget
UNIT OF
VARIABLE
Ratios:
Amount of expenditure allocated to public defence per case filed.
% of country’s GDP earmarked for public defence in relation to general State budget.
% of income coming from international aid in relation to budgets allocated by the State.
Chronological follow-up of the annual trend in available budget over the course of any given period.
Average Public Defence Office budget.
Budgetary implementation: budget allocated over budget spent.
INDICATORS AND UNIT OF MEASUREMENT
Statistical records of the body tasked with the financial
administration.
SOURCE
ANALYSIS
Legal
Entry to the
professions profession
Quality of legal
education
Ethics code
Demand
for
legal services
1. Lawyers and notaries have received a university law education and must have passed the necessary Interviews with experts, surveys and legal analyses
examinations for obtaining a university degree.
1. International rating of the level of education provided by university law faculties.
Reports of international education rating agencies.
2. Number of law students per university law lecturer/professor.
Official records, reports, issue briefs and studies.
1. Existence or absence of professional ethics code for the exercise of the legal profession.
Legal analysis.
Ratios:
Statistical records, issue briefs and studies.
Average population per lawyer, per region.
Average cases filed with the judiciary per lawyer.
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4.5. DIMENSION 5: ACCESS TO JUSTICE
Access to justice refers to fact that justice is equally open to all, without discriminatory barriers of
any kind, whether economic, cultural, ideological, religious, ethnic, geographical or even linguistic.
The concept of access to justice has innumerable theoretical facets. On the one hand, it
originates in theoretical dissertations on the Welfare State (see Cappelletti, 1984). Hence it arises
as a concept associated with the mechanisms of “legal aid” and in the light of the following
question: what is to be done to ensure that the poor and underprivileged of all types may enforce
the rights which have been acknowledged as being rightfully theirs? The State, in this theoretical
sphere, is not solely vested with the function of ensuring safety and security –i.e., it is not merely
a police state- but is also vested with the function of actively transforming society, by fostering
equality of opportunity and social equity. In this order of things, promotion of effective access to
justice becomes a requirement of the State, something that it must confront by means of a series
of measures and official promotional programmes. In this set of measures, four stages or “waves”
can be discerned: 1) legal aid to the poor (free legal services, public defence offices, reduction in
administrative judicial charges, benefits of cost-free litigation, setting-up of community-based
legal practices, etc.); 2) protection of divergent or fragmented interests (recognition of class
actions for a number of rights, consumer protection, etc.); 3) establishment of alternative
mechanisms of dispute resolution; and 4) recognition of new rights (for a comprehensive account
of these “waves”, see Cappelletti and Garth, 1984).
From other more legal theoretical standpoints, access to justice tends to be framed within the
theories of public service. On the basis of this kind of approach, justice is conceived as a public
service to which all the ruling principles that govern more traditional public services, such as
continuity, access, equality, etc., are applicable. Once justice is understood in this sense, the
question of “equalitarian” access to the service rises to position of pre-eminence, in which the
centre of attention ceases to be the professional practitioner of justice, basically the judge, and
focuses instead on the citizen-user.
In the third place, the concept of access to justice is solidly rooted in all the theoretical debates
about human rights. Indeed, denial or negation of access to justice in respect of a sector or group
is an inadmissible postponement according to the principles of non-discrimination that are the
essence of fundamental rights (Thompson, 2000:460).14
Lastly, the concept of access to justice has theoretical democratic facets. Some writers on the
theory of democracy maintain that, bearing in mind that political participation and equality are
decisive axioms of the governing view of democracy, the possibilities of exercising political power
ought to be equitably distributed among all citizens. On the basis of this idea, it is argued that all
persons should have equitable access to all spheres of public power. This, applied to a judicial
system can mean two things: a) that all adults should have equal opportunity to accede without
discrimination of any type to public posts in the judicial system (judge, defender, attorney, etc.);
and b) that all persons should have equal opportunity to submit their disputes to an official,
impartial judicial system (See Held, 1996).
Though it is evident that from this perspective of human rights, access as well as effective protection of rights by
the bodies tasked with dispensing justice assume relevance, and to this end, access to justice and efficiency of the
judicial system are both fundamental.
14
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From this same theoretical stance, Coppedge proposes redefining the concept of democracy, by
dividing the notion of inclusiveness (which in the classic concept of polyarchy exclusively refers to
the right to vote) into two separate dimensions: the proportion of persons that possess a given
right (breadth of inclusion) and the degree of effectiveness of this right (fullness of inclusion).15 In
line with this conceptual approach, political participation would involve, not only the right to vote
that is exercised in the elections, but also other rights that assume concrete form in access to
justice, public health, participation in local public hearings, the opportunity of holding collective
protest demonstrations, etc., (Coppedge, 2002: 9). Accordingly, in this tentative
conceptualisation, measurement of access to justice as a possible component of a democratic
regime would assume special relevance.
THEORETICAL ASPECTS OF THE STUDY OF ACCESS TO JUSTICE
Welfare state
Democracy
Public service
Human rights
Source: In-house
The study of access to justice attempts to take an empirical approach to the bars which citizens
encounter when seeking justice. In this regard, a number of impediments have been identified
(Gargarella, 2003):
ABSENCE OF INFORMATION: The most vulnerable and underprivileged lack the most basic
information as to their legally recognised rights. This dearth of information entails a series of
subsidiary problems, namely, not knowing which rights one has, not knowing where to go and
what to do in order to make a claim, not knowing what the appropriate legal language is for the
purpose or how to act in the event of initiating a lawsuit.
FINANCIAL COSTS: In principle, these difficulties appear in all countries, and affect all manner and
classes of persons. Nevertheless, the problems are more serious where the people and countries
are poor. Poor countries tend to have greater problems to ensure broad-based social protection
and education. Poor people, on the other hand, are less inclined to initiate legal actions by
themselves. Firstly, they have to confront the costs involved in legal representation, that is to say,
they have to pay a lawyer. In this regard, it must be stressed that the likelihood of winning a court
case diminishes drastically without legal representation (where this is not compulsory). Secondly,
they have to pay the court fees and charges (provided that these exist). Thirdly, they have to face
a range of additional expenses, e.g., they need to travel to the city, survive there until the
formalities have been completed, obtain documents, make photocopies, telephone calls and so
forth. Although these costs may not be important for the majority of people, they nevertheless
represent serious barriers to the poor. According to a study conducted by the IDB in seven Latin
American countries, the economic factor is central to understanding why recourse is or is not had
to justice (Thompson 2000: 415). Moreover, such costs obviously soar when justice is “corrupt”,
since access to justice then calls for “additional” money to ensure a favourable result. In this
Furthermore, Coppedge proposes adding another two dimensions: “capacity to govern”, namely, the fact that
elected officials are not subjected to any type of veto by unelected authorities; and “division of powers” (in
accordance with the conceptualisation proposed by Lijphart, 1999).
15
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connection, there is a generally held perception, insofar as Latin America is concerned, that
justice can only be attained through influence and power:
SOME PERCEPTIONS
In Peru, 66% of all Peruvians believe that the legal and judicial system is not effective, and 40%
believe that this inefficacy is due to corruption.
In Ecuador, 91% of all Ecuadorians believe that the judicial system is corrupt.
(Thompson 2000: 74–5, 2)
In Colombia, 96.8% of the people believe that judges can be “bought” by rich litigants, and 93%
state that litigants’ social position determines the outcome of court cases (Herrera Market 1999:
346–7).
In Chile, around two thirds of the most vulnerable and underprivileged (63.5%) believe that judges
treat the rich differently, and 88.7% are of the opinion that there is one justice for the poor and
another for the rich (Correa Sutil 2000: 303).
Source: Gargarella, 2003
FORMALITY: Administration of justice is distinguished by excessive formality and bureaucratic
procedures, which ultimately transform justice into something exclusive that only experts can
understand. Recent empirical studies show that formality is systematically associated with a
longer duration of judicial proceedings, less consistency, less honesty, lower quality of judicial
decisions and greater corruption (Djankov et. al, 2002). Legal language tends to be complex,
even for the best educated, and this not only excludes the majority of citizens from the legal
sphere, but also reinforces the various forms of existing inequalities, rendering it indispensable for
the services of a lawyer to be engaged. Yet in this bureaucratic and formalistic context, lawyers
tend to exploit the formalities to take advantage. On many occasions, the result of a court case
depends more on procedural than on substantive issues. At all events, one cannot gain an indepth understanding of this problem by reducing it to a mere question of technical language: the
formalities of justice transcend legal rhetoric and also extend to the way in which judges comport
themselves, and even to the architecture of their premises. What matters here in the ultimate
instance is to realise that all these formalities reinforce barriers and strengthen the perception that
justice is not for all (Thompson, 2000: 425).
SOME REASONS THAT ACCOUNT FOR LEGAL FORMALITY
According to Shapiro [1981], the ideal model of justice resides in the resolution of a dispute
between two neighbours by a neutral third neighbour, guided by common sense and custom. This
manner of settling disputes is not based on formal rules and does not limit the procedures which
may be used to reach a solution a priori. However, judicial reality strays from this ideal prototype in
all countries: professional judges and lawyers are employed to settle disputes; the procedures to be
used, the manner in which evidence must be presented and interpreted, and how the parties are to
communicate with one another, are all meticulously regulated. In the majority of cases, written are
preferred to oral proceedings, and the possibility of taking judicial decisions on appeal to a higher
organ is widely accepted. In other words, most countries formally regulate judicial proceedings.
The reasons for regulating dispute resolution are analogous to those which explain regulation in
general: “the State wishes to control the result”. It wishes to punish some types of conduct more
severely than would an informal third party, establish precedents that will serve to settle similar
future cases, ensure that disputes are resolved consistently to promote commerce or political
uniformity, or simply reduce errors that are invariably entailed in all informal dispute resolution
mechanisms. Then again, it may arguably wish to control the result in order to obtain personal
benefits, favour its followers, or alternatively, punish its enemies and detractors.
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A final reason for regulating dispute resolution resides in the fact that informal settlement of
disputes is more vulnerable to interference by the powerful. If one of the two parties is
economically or politically more powerful than the other, he will have greater capacity to exert
improper influence over the judge. In the words of Rudolf von Jhering, “form is the sworn enemy of
arbitrary rule, the twin sister of liberty”.
For these -and possibly other reasons- countries carefully and precisely regulate their judicial
proceedings.
Source: Djankov et. al, 2002.
FEAR AND DISTRUST. A further important bar, related to the previous two, lies in public fear and
distrust. Poverty is closely linked to this type of barrier: the poor are more inclined to fear different
abuses on the part of authority, such as being persecuted, humiliated or prejudged. Moreover,
this fear is not always unjustified, bearing in mind that in many Latin American countries
discrimination and abuse by authority is an everyday occurrence.
JUDICIAL DELAYS. Another of the factors that explain the reluctance to have recourse to justice
resides in the excessive time involved in airing cases before the courts. Judicial delays are
attributable to many factors, but only some of these are justified. For instance, in some provinces
or regions there may be relatively few judges who have to deal with a workload that is excessive
in relation to the capacity to attend to same. On other occasions, the delays are explained by a
lack of interest on the part of judges to direct their efforts to cases of little importance, preferring
instead to spend their time on cases of institutional or economic relevance. Whatever the
reasons, however, judicial delays discourage access to justice and worsen the situation of the
poorest.
GEOGRAPHICAL CAUSES: In Latin America, the courts are usually located in city centres. As a
result, those who live in less populated areas –rural areas or areas on the outskirts of cities- do
not enjoy easy access to same. This not only means a series of financial costs, but also entails
costs of another type, viz., often, people from the interior are not familiar with cities, and the mere
fact of having to reach and get about a city can be a problem in itself (Gargarella, 2003). This
barrier is of the utmost importance because it suggests the way in which the judicial system was
conceived: the underlying idea did not entail starting from the problems of the people and
situating the courts where they were most needed, but just the contrary, i.e., positioning the
courts in places where only those who could reach them would have the possibility of resolving
their disputes (Gargarella, 2003).
ETHNIC-, LANGUAGE- AND GENDER-BASED BARRIERS: One of the most serious problems of access to
justice, especially in multicultural states, lies in the discriminatory barriers that face minority
groups. In Latin America, in particular, it is the indigenous peoples who face the most serious
obstacles, such as language barriers, the application of rules and regulations which have little or
nothing to do with their cultures, scant development of specialised services, and inherent racism.
Elsewhere, in markedly traditional cultures, it is the women who suffer discrimination, and it is
only natural for such discrimination to be transferred to the courts. Under a democratic Rule of
Law, every individual is equal before and under the law, and has the right to equal legal
protection without discrimination by reason of race, national or ethnic origin, colour, religion, sex,
age, or mental or physical disability. This assertion does not, however, exclude the possibility that
there may be laws, programmes or activities which have as their goal the “improvement” of the
conditions of disadvantaged individuals or groups, including those who are at a disadvantage by
reason of their race, national or ethnic origin, colour, religion, sex, age, or mental or physical
disability.
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CULTURAL BARRIERS: SOME REALITIES AND INITIATIVES
In Costa Rica, the judiciary has no special mechanisms to deal with the legal problems of the
indigenous populations, which are subsumed into the law that governs the remainder of the
country. Moreover, legal counselling for such populations is furnished by voluntary bodies (Alfaro,
2002).
In Panama, the judiciary has appointed district judges, who have the same category as municipal
judges. For judicial purposes, however, the indigenous districts are subsumed into the judicial
circuit (Giannareas, 2002).
In Guatemala, the Criminal Procedural Code was amended in 1997 to allow for the creation of
community courts in criminal matters in five towns of the Republic, in which there were no Justices
of the Peace. Each court was to have three judges capable of making themselves understood in the
predominant language of the region and in Spanish. Based on objective criteria (predominance of
the Mayan language, majority indigenous population, town not having a Justice of the Peace,
creation of court being acceptable to the community, number of inhabitants, degree of social
conflictivity, and others) five towns were selected, and in 1998 the courts went into operation. The
towns are San Andrés Semetabaj (Sololá), San Rafael Pétzal (Huehuetenango), San Luis (Petén),
Santa María Chiquimula (Totonicapán) and San Miguel Ixtahuacán (San Marcos). In these courts,
justice is dispensed in accordance with local usages and customs, and the punishments applied
usually take the form of community work under the supervision of deputy mayors, and repair of
damage. Measures involving imprisonment do not tend to be used, as these are deemed to be
prejudicial to the guilty party, his family and the community (Ramos Rollón and Linares, 2003)
Source: In-house
The following variables and standards have been established taking the above points into
account.
VARIABLES AND STANDARDS
VARIABLE
Population’s
level
of
information as to rights
Population’s level of trust in
justice
Existence of organisations
giving instruction in rightsrelated matters
Existence of organisations
that offer free legal services
VARIABLE
Uniform distribution of
Lower and Magistrate’s
Courts
Cost of judicial fees and
charges
Duration
of
judicial
proceedings
Degree of formality of
proceedings
Existence of alternative
means of dispute resolution
CIVIL SOCIETY
STANDARD
1. General population has been instructed as to their fundamental rights.
2. General population, especially the neediest sectors, have trust and
confidence in the organs of justice.
3. There are non-governmental organisations that actively foster education
in human rights matters.
4. There are organisations that furnish legal services to the poorest
population segment.
JUDICIARY
STANDARD
1. The territorial coverage of the courts is distributed in accordance with the
relative population in the each region and with judicial demand levels and
matters.
2. There are judicial fees and charges, and where these do exist, they are
reasonable.
3. The duration of judicial proceedings is reasonable.
4. Judicial proceedings do not require more formalities than are necessary to
ensure legal certainty and reduce the margin of error.
5. There are alternative means of dispute resolution, both within the
judiciary and others sponsored by independent organisations, which provide
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a viable alternative solution to the courts.
Existence
of
officially- 6. There is the possibility of having recourse to officially-sponsored free
sponsored free legal aid legal aid mechanisms (public defenders) where parties cannot afford the cost
mechanisms
of legal representation, and these mechanisms are known and offer a quality
service to the most vulnerable and underprivileged segments of the society.
Recognition of minority 7. In those countries where there are officially recognised language
languages
in
judicial minorities, those who bring claims before the courts have the right to do so
proceedings.
in their mother language, and in cases where this right is not recognised, the
State has the obligation to provide interpreters for translation into the
national language.
Legal recognition of cultural 8. In those countries in which there are cultural and ethnic minorities, the
minorities’ own dispute State recognises, and, where applicable, provides mechanisms and
resolution mechanisms
institutions so that said groups can deal with their internal disputes in
accordance with their cultural values, provided that such values are
compatible with fundamental human rights.
LEGAL PROFESSIONS
VARIABLE
Value for money in terms of
fees/quality
of
legal
counselling service
Number of lawyers per
territory
Existence of information
programmes on the part of
bar associations
Relative ease of client-lawyer
communication
STANDARD
1. The fees of privately hired lawyers correspond to the quality of service
offered.
2. There is a sufficient number of lawyers per region or district to ensure
effective access to legal services.
3. Bar associations promote general public information programmes on
citizen rights and obligations, and the lawyer’s function in society.
4. Lawyers have access to their clients, especially those in detention or in
prison, and are provided with sufficient means and time to communicate
with same and prepare their defence.
Degree
of
information 5. Lawyers inform their clients as to the existence and possibility of
furnished by lawyers to mediation, conciliation, arbitration and any other swifter and less costly
clients as to alternative alternative means of dispute resolution .
means of dispute resolution
Participation in cost-free 6. Lawyers participate in special programmes that tend to ensure effective
programmes
access to legal services for all persons, and the poorest in particular.
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UNIT OF
VARIABLE
INDICATORS AND UNIT OF MEASUREMENT
SOURCE
COMMENTS
Population’s level of
information as to rights
1. Percentage of population, broken down by social category, who
reply that they know what their rights are and how to claim them.
Unit of measurement: interval
2. Percentage of indicted individuals that do not have legal
representation in criminal trials.
Unit of measurement: interval
3. Percentage of illiterate population.
Unit of measurement: interval
1. Surveys, NGO records, issue
briefs and studies.
1. It is advisable to break down the population by
gender and ethnic group, and ask specific questions,
such as: where would you go if you wished to report a
crime?; what would you do if a relative of yours were
arrested?; and, what would you do if you were unfairly
dismissed from your job?
2. Causal assumption: it is assumed that the better an
accused party is represented, the more knowledge
said party will have regarding the rights to which he is
entitled.
3. This is an indirect (proxy) indicator: it is assumed
that illiteracy necessarily entails ignorance as to
individual rights.
ANALYSIS
Population
and civil
society
Population’s level
trust in justice
of Percentage of population, broken down by social category, who
reply that they have trust and confidence in the judiciary.
Unit of measurement: interval.
Existence of
Existence of citizen organisations (NGOs, civil associations,
organisations giving
companies, mass media, etc.) that actively foster education in
instruction in rightshuman rights matters.
related matters
Unit of measurement: yes-no
Existence of
organisations that
provide cost-free
defence
UNIT OF
VARIABLE
Number of lawyers in community-based legal practices or nongovernmental organisations (per region or area of poverty) that
provide free legal services, per 100,000 inhabitants.
Unit of measurement: interval
INDICATORS AND UNIT OF MEASUREMENT
2. Statistical courts records.
3. Censuses
Surveys, NGO records, issue
briefs and studies.
1. Interviews with experts,
lawyers and human rights
organisations. Issue briefs and
studies.
2. Interviews with communitybased legal practices and
NGOs; surveys.
1. Interviews with experts,
lawyers, human rights
organisations. Issue briefs and
studies.
2. Interviews with communitybased legal practices and
NGOs; surveys.
SOURCE
COMMENTS
ANALYSIS
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Judiciary
Uniform distribution of 1. Existence of adequate territorial coverage.
Lower and Magistrate’s Unit of measurement: yes-no
Courts
2. Percentage of rural population or population living in outlying and
underprivileged urban areas who state that they do not have access
to the courts for geographical reasons.
3. Number of courts established in areas defined as rural, over total
rural population.
Unit of measurement: interval (%).
4. Number of courts established in urban areas defined as outlying
and underprivileged, over amount of population above the poverty
threshold.
1. Interviews with experts,
judges and judicial staff
2. Surveys
3. Official records of the body
tasked with judicial
administration and
infrastructure. National
censuses.
4. Official records of the body
tasked with judicial
administration and
infrastructure. National
censuses.
1. Interviews with experts,
Cost of judicial fees and 1. Existence of appropriate judicial fees and charges.
judges and judicial staff.
charges
Unit of measurement: yes-no
2. Percentage of users or judges who reply that the amount of 2. Public opinion surveys
3. Issue briefs and studies,
judicial fees and charges is high.
official records.
Unit of measurement: interval
3. Amount of existing judicial fees and charges over the regional
mean.
Duration of
proceedings
judicial 1. Existence of reasonable duration of judicial proceedings, per
category.
Unit of measurement: yes-no
2. Percentage of litigants or judges (per category) who reply that the
duration of court cases is long.
3. Duration of judicial proceedings in days, months or years (by
category of proceedings: civil, criminal, ordinary, summary, etc.),
over the regional mean.
Unit of measurement: interval
Degree of formality of 1. Existence of exaggerated formalities for proceedings purposes.
proceedings
Unit of measurement: yes-no
2. Index used by Djankov et al (2003)
1. Interviews with experts,
judges and lawyers.
2. Surveys
More courts are not always better. An estimate is
required as to what the optimal number would be.
3. There are no comparative studies on this topic.
Fees and charges are assumed to be detrimental
when they discourage the poorest from having
recourse to justice, and positive when they discourage
frivolous or reckless claims and help finance
expenses of the judiciary which otherwise could not
be defrayed. However, the middle ground between
these two extremes is a highly debatable point.
3. In cases where there were no issue briefs and
studies or official records, a representative sample of
cases per jurisdiction would have to be obtained and
the time taken per procedural stage then ascertained.
This entails a very high financial cost.
3. Issue briefs and studies,
official records.
1. Interviews with experts,
judges and lawyers.
2. An explanatory annexe of this index is attached
below (ANNEXE 3)
2. The Practice of Justice, 2002
UNIT OF
VARIABLE
INDICATORS AND UNIT OF MEASUREMENT
SOURCE
COMMENTS
ANALYSIS
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Existence of alternative 1. Existence of alternative dispute-resolution mechanisms.
means
of
dispute Unit of measurement: yes-no
resolution
2. Percentage of users, lawyers, or judges who reply that alternative
dispute-resolution mechanisms afford swifter and more accessible
justice.
Unit of measurement: interval
3. Total number of cases filed with official judicial systems and
mediation, arbitration and conciliation centres, over the number of
cases submitted to the latter (%)
Unit of measurement: interval (%)
4. Number of cases submitted to mediation, arbitration and
conciliation centres over the regional mean.
Unit of measurement: interval
1. Interviews with experts,
judges, lawyers. Analysis of
laws.
2. Surveys.
3. Statistical records of law
courts and judicial centres.
4. Issue briefs and studies,
statistical records of regional
judicial centres
1. Interviews with public
defenders, experts and judges.
Existence of officially- 1. Existence of adequate public defence offices
sponsored free legal Unit of measurement: yes-no.
aid mechanisms
2. Number of public defenders (per region), per 100,000 inhabitants. 2. Official records, issue briefs
and studies.
3. Number of cases in which a public defender acts leading to a
judicial decision or ruling favourable to the person charged, the 3. Statistical records of public
defence offices.
defendant or the accused.
4. Percentage of indicted individuals that do not have legal
representation in criminal trials.
Unit of measurement: interval
Recognition of minority 1. Legal recognition of the right to file claims in other minority
languages in judicial languages.
proceedings.
2. Number of judges who can speak minority languages over
number of judges within the area of the language minority
population.
3. Number of interpreters per 100,000 inhabitants belonging to
minority groups.
Legal recognition of
1. Existence of officially recognised community or indigenous
cultural minorities’ own courts.
dispute-resolution
mechanisms
2. Number of cases and issues filed in community or indigenous
courts..
UNIT
OF
VARIABLE
INDICATORS AND UNIT OF MEASUREMENT
Access to alternative dispute-resolution mechanisms
does not necessarily mean a better “quality” of
service. It is reasonable to surmise, however, that the
better its quality, the more willing the population would
be to have recourse to same.
This type of information is not always available.
The term “public defenders” should be taken to mean
those who have an official salary in consideration of
functions performed. Ex officio defenders, though they
provide free legal services, tend to be of lower quality,
inasmuch as there are no incentives.
4. Statistical records of criminal
courts.
1. Analysis of laws; interviews
with experts and legal scholars.
2. Official records; interviews
with and surveys of judges.
3. Official records, issue briefs
and studies.
An estimate would have to be made of the optimal
level of interpreters which should be offered.
1. Analysis of laws, interviews
with experts, legal scholars and
indigenous judges.
2. Statistical records of
community or indigenous
courts.
SOURCE
COMMENTS
ANALYSIS
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Legal
professions
Legal
professions
Value for money in
terms of fees/quality of
legal
counselling
service
Number of lawyers per
territory
Existence of
information
programmes on the
part of bar
associations
Relative ease of clientlawyer communication
1. Percentage of non-expert users who reply that they are satisfied 1. Surveys.
with the quality of service afforded by their legal representative.
1. Percentage of users, per region, who state that have access to
and are able to pay a quality lawyer.
2. Number of lawyers per region or province over the amount of the
respective local populations.
3. Number of lawyers per region or province over the number of
cases submitted to the official organs of justice in each.
4. Number of lawyers per country (or per province) over the general
mean.
General unit of measurement: interval.
1. Existence of public education programmes sponsored and
financed by professional or bar associations.
Unit of measurement: yes-no
2. Percentage of non-expert users who indicate the programmes
financed by professional legal associations as their source of legal
education.
Unit of measurement: interval
1. Existence of barriers and unreasonable impediments to
communication between lawyers and clients in prisons or detention
centres.
Unit of measurement: yes-no
2. Percentage of detainees and prison inmates who reply that they
have met with their lawyer.
Unit of measurement: interval.
1. Percentage of non-expert users who reply that their legal
representatives have informed them as to the possibility of settling
disputes via mediation, arbitration or conciliation more expeditiously
and economically.
1. Surveys
2. Bar association records.
Censuses.
3. Bar association records.
Judicial statistical records.
4. Issue briefs and studies.
1. Interviews with experts,
lawyers and judicial staff.
2. Surveys
1. Interviews with experts,
lawyers, and prison and
detention centre officers;
analysis of prison regulations.
2. Surveys.
Degree of information
1. Surveys.
furnished by lawyers to
clients as to alternative
means
of
dispute
resolution
Participation in cost- 1. Existence of free legal aid mechanisms financed by professional 1. Interviews with experts,
judges and lawyers. Analysis of
free programmes
legal associations or bar associations.
laws.
Unit of measurement: yes-no
2. Number of lawyers in legal aid organisations financed by
professional legal associations or bar associations (per region or
area of poverty) that provide free legal services, per 100,000
inhabitants.
Unit of measurement: interval
2. Issue briefs and studies,
Statistical records of bar and
professional legal associations.
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DIMENSION 6: ECONOMIC PERFORMANCE OF JUSTICE: LEGAL CERTAINTY
The economic performance of justice refers to the capacity of a judicial system to affect a country’s
economic development.
The Law and Development Movement: Reflexion on the links between the Rule of Law and
economic development arose in the mid 1960s and corresponded to what is called today the “law
and development” movement, which originated in the framework of United States development
aid policies for Africa, Asia and Latin America. This movement sought exclusively to analyse the
way in which legal systems could be linked to the process of economic development. Its aims
were essentially practical, in that they sought to draw up action formulae –legal reforms– in order
to achieve a transformation of the socio-economic conditions prevailing in each country.
In this respect, the “law and development” movement postulated an instrumental link between
formal rules (the law sanctioned and applied by state organs) and economic development, but
said rules, particularly those of public law, had to contain specific goals of a substantive nature.
This second premise left open a wide range of programmes and goals, which rendered it
imprecise and subject to more discretionary degrees of interpretation. In practice, it promoted a
legal model represented in institutions derived especially from the USA, and a set of legal
teaching methods (Socratic method, “test case”). In most cases, this attempt at a transplant failed
to take into account the specific conditions of the recipient countries, and in addition met with the
resistance of many actors central to the implementation of the reform projects (Burgos, 2002: 4).
The concrete results of transplanting institutions were a failure and neither the Socratic teaching
method, nor the study of law based on case analysis, was predominantly adopted.
PRACTICAL EXPRESSIONS OF THE LAW AND DEVELOPMENT MOVEMENT
Chile, Colombia, Costa Rica and Brazil implemented a series of initiatives which were basically
geared to the reform of legal education through transplanting the education model of law schools
that employed the Socratic method, namely, test cases and the instrumental use of law. The Socratic
method proposed a greater participation and dialogue between teacher and pupil, and sought to
supersede the dominant master-class pattern that characterised Latin American law faculties. For
their part, test cases consisted of analysing law based on the study of cases and not merely
memorising laws and rules written down in codes. The ultimate goal was to train a new generation
of lawyers who, imbued with knowledge of laws and institutions peculiar to developed countries,
were to be capable of using their knowledge of the law creatively to resolve a multitude of socioeconomic problems, and lend impetus to and direct reforms. Leading US law faculties took part in
this effort, by receiving young Latin American lecturers for new training and dispatching teachers to
conduct specific field research into matters, such as legal education or the profile of lawyers in the
countries under analysis. Among these faculties, mention might just be made of the Universities of
Yale, Harvard, and Wisconsin in Madison
Source: Burgos, 2002 pp.3 and 12.
Rule of Law Revival: The early 1990s saw certain international financial institutions, principally
the World Bank, raising the importance of reconsidering the role of juridical-political institutions in
market-led economic growth. A practical reason was also involved: neoliberal-type readjustment
programmes had had limited effects on countries’ economic development. One of the reasons put
forward were the institutional vacuums or the existence of institutions that gave rise to inefficient
allocation of resources. This interest in institutions was to become the pivotal consideration of the
Rule of Law as an institutional prerequisite for economic development (Burgos, 2002: 6).
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THE NEW INSTITUTIONAL ECONOMY
Market transactions are prone to the following costs: production costs (land, labour and capital)
and transaction costs (costs of measurement of the value of the good or asset forming the subject
of the transaction, time, uncertainty as regards possible performance of contracts, communication,
uncertainty as regards unforeseen contingencies, etc.). The idea that underpins this theoretical
approach is that the market is a costly mechanism, that negotiation is an action which constitutes a
cost to the negotiating party and that the comparative difference in these costs between different
markets is what explains why some markets generate a high degree of specialisation and economic
development, whereas others stagnate and have a meagre level of specialisation.
Based on this understanding, institutions are above all “the rules of play” and constitute limitations
on human interaction, the principal function of which is to reduce uncertainty, or, in other words,
to extend the predictability of human conduct, and thereby reduce transaction costs (North, 1990).
The institutions are rules of action designed to channel types of conduct and stabilise expectations.
Many institutions serve to ensure property rights and enforce performance of contracts. Some of
these are private, such as reputations and informal discussions among neighbours, and do not come
within the purview of government. Others institutions which reinforce fulfilment of contracts and
protect property rights are public, such as rules regulating the market and judicial system. The
former, via their regulatory agencies, restrict unfair private conduct, whilst the latter, via judges,
resolve contractual and property disputes.
Given these transaction costs, the limited rationality and opportunism of the actors, the institutions
(both formal and informal) aim at reducing uncertainty, thereby enhancing resource allocation
through laying down guidelines for the predictability of human conduct. Those institutions that
efficiently guarantee property rights, the enforceability of contracts and the stability of the rules of
play, offer a framework of incentives favourable to private economic activity in the market and, in
so doing, foster the development of an economy.
Source: Burgos, 2002
The Rule of Law fulfils two basic functions. In the first instance, it offers conditions of legal
predictability, especially through the clarity and guarantees it bestows upon property rights, and
protection in the performance of agreements, whether private or with public bodies. In addition, it
affords conditions of political and legal stability through the existence of a system of distribution of
powers which exercise mutual control over one another and, in particular, an independent and
efficient judicial system that vests promises or legal content with “credibility” (“making promises
credible”).16
On the basis of these premises, a legal and judicial system can have a decisive effect on the
economic development of a country, provided that it meets three conditions (Castelar Pinheiro,
2000), namely:
a) if it effectively protects intellectual property, stimulates innovation and the spread of
technology;
b) if it protects capital investments from the opportunistic conduct of the State and parties,
increases the productivity of such capital and allows for a greater volume of private investment;
and,
c) if laws are clear and foreseeable, judges impartial, and litigation costs affordable.
On the whole, an institutional framework on these terms ought to act as a stimulus for
technological innovation, increased investment and lower transaction costs, and along with the
last-mentioned, greater simplification and extension of commercial transactions in the market,
thus making the economy more dynamic and specialised. This set of institutional arrangements
16
In the words of Madison: “Judges are the guardians of promises”.
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entails a special, leading role for the judiciary, inasmuch as it is tasked with settling disputes
deriving from a breach of contract in a predictable manner.
Thomas Hobbes, argued that without a judicial system, businessmen and traders would be reluctant
to enter into mutually beneficial exchanges for fear that contracts might not be fulfilled. When two
persons enter into an agreement: “For he that performeth first has no assurance the other will perform after
because the bonds of words are too weak to bridle men’s ambitions, avarice, anger, and other passions without the fear
of some coercive power” (Hobbes, 1651, 1962:8). Where the judiciary is incapable of ensuring the
performance of contracts which are concluded in a market, many transactions are conducted in the
spot market (market in which cash trades are made for immediate delivery), where there is a lesser
likelihood of contracts being breached, or alternatively, companies merge, so transforming intercompany into intra-company transactions. Whatever the case, however, the result is higher
transaction costs.
Source: In-house
Current state of knowledge: economists have been very optimistic about the role of judicial
systems as fundamental institutions for ensuring performance of contracts and protection of
private property, but very few have paid attention to their limitations. At the outset of the 1990s,
there was no empirical confirmation of this hypothesis, due to the absence of data on political and
social institutions. North (1990:107) even stated that, “we cannot see, feel, touch, or even
measure institutions”. Thus far, numerous studies have analysed the impact of institutions and
their performance on economic growth, but the results of these studies are ambivalent:
- on the one hand, the direction of causality of the hypothesis is not clear: it is also likely
that it is high levels of economic development that permit the State to spend more on
judicial systems and make them more efficient and transparent (Posner, 1998).
- very few have statistically checked the judicial variables against other intervening
variables which also have the potential to reduce transaction costs (e.g., technological
advances, the existence of informal control institutions, degree of confidence in the
financial system, bank interest rate levels and even the degree of cultural homogeneity in
a society, to name just a few).
To date, we know of no study that measures the different facets of the judiciary in comparative
and statistical terms and compares these against economic growth. Among the copious literature
on institutional growth and performance, it is surprising to discover that no empirical study
undertaken until now has compared economic growth to the different variables of a judicial
system to which economic theory grants an important role in economic growth. This shortcoming
is perhaps explained by the fact that no methodology has been developed for application to the
measurement of judicial performance.
In this regard, the paper by Djankov et al (2002) measures the duration and formality of a given
category of judicial proceedings and correlates these data with per capita income level, but the
results are negative: duration of proceedings evinces no significant relationship whatsoever with
per capita income. There is also a study that measures judicial independence with economic
growth (Feld and Voigt, 2002), but the validity of the indicators used to measure independence is
flawed (Linares, 2003). In the light of these brief comments and examples, one can only repeat,
paraphrasing Messick (1999), that “The most that can be said at the moment is that the weight of
opinion and evidence suggests the existence of some type of relationship” (Messick, 1999, p.123)
IMPACT OF THE JUDICIAL SYSTEM ON THE ECONOMY
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A deficient judicial system significantly influence the performance of the economy in the following
ways:
a) Uncertainty in private contractual practices
Faced with a lack of confidence vis-à-vis the courts guaranteeing that contracts will be fulfilled or
compensation paid, or the slowness of these types of judicial actions, entrepreneurs tend to
resort to three strategies prejudicial to the country’s economy:
· entrepreneurs place a limit on the amounts to be sold on credit owing to the difficulties
of collection. This leads to economies of scale being prejudiced;
· hiring is confined within social or family groups, thereby rendering the entry of third
parties difficult, which depresses the job market; and,
· entrepreneurs prefer to produce components in-house rather than outsourcing to
external suppliers.
b) Uncertainty of property rights
The fact that property rights cannot be properly safeguarded in the Lower and Magistrate’s Courts
can lead to two situations:
· people limit their acquisition of property; and,
· the population or private companies resort to extrajudicial methods of defending
themselves against “invaders”.
If violations of intellectual property rights, patents and trade marks cannot be swiftly restrained in
the courts, this will give rise to a reduction in the technological base of the economy as a
consequence of the lack of creation, acquisition and exploitation of intellectual property.
c) Disputes between the private sector and civil servants
If the courts are unable or unwilling to apply disciplinary measures to civil servants who abuse
their discretionary powers, private activities that depend on discretionary approval will tend to limit
their resource commitments or resort to unsuitable means to ensure approvals.
e) Justice, investment and savings
The precariousness of the legal framework, translated into complex processes for claiming rights,
affects investment and, by extension, prospects for long-term growth. Similarly, volatility in
savings is greater when the legal system does not function smoothly, and savers limit the time
span and the terms and conditions of their bank deposits.
The variables, standards and indicators of the category entitled, “economic performance of
justice: legal certainty”, are outlined below.
VARIABLES AND STANDARDS
JUDICIARY
VARIABLE
STANDARD
Degree of protection of 1. Legislation affords adequate protection to intellectual property, and such
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intellectual property
Degree of protection of
private investment
Clarity of legal provisions
Stability of legal provisions
laws are consistently applied by judges.
2. The judiciary protects private investment from the opportunistic conduct
of the parties and government.
3. The legal system contains clears rules and regulations of commercial law.
4. The legal system contains stable and hierarchically ranked rules and
regulations of commercial law
judicial 5. Judicial decisions are foreseeable according to the nature of same.
Predictability of
decisions
Independence
of
the 6. The judiciary is independent.
judiciary
Duration of commercial 7. The duration of commercial court cases is reasonable.
court cases
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INDICATORS
VARIABLE
INDICATORS AND UNIT OF MEASUREMENT
Degree of protection of 1. Existence of laws protecting intellectual property in line
intellectual property
with international standards.
Unit of measurement: yes-no
2. Correct application of intellectual property law.
Unit of measurement: yes-no
(other units of measurement may be used, e.g., high,
moderate or low degree of protection)
Degree of protection of 1. Protection by the judiciary of capital investments.
private investment
Unit of measurement: yes-no
(other units of measurement may be used, e.g., high,
moderate or low degree of protection)
2. Proxy indicator: CIM (country intensive money).
Measures the percentage of bank money over the total
money supply (bank and legal tender).
3. Percentage of local or foreign-based businessmen and
entrepreneurs who reply that they have trust and
confidence in the judiciary when it comes to investing their
capital.
Unit of measurement: interval
Clarity
of
legal 1. Existence of clear and foreseeable commercial laws
provisions
Unit of measurement: yes-no
Stability
of
provisions
legal 2. Correct application of commercial laws.
Unit of measurement: yes-no
3. Existence of specials courts in commercial matters.
SOURCE
CAUSAL ASSUMPTIONS
1. Legal analysis of specific legislation Causal assumption: if intellectual property is effectively
governing intellectual property, by a group of protected, this will stimulate economies of scale and the
spread of technology.
experts in the matter.
2. Legal analysis of a sample of intellectual
property cases by a group of experts.
1. Legal analysis, by a group of experts, of a Causal assumption: if capital investments are effectively
sample of cases involving capital investment protected from the opportunistic conduct of the State and
parties, this will enhance capital productivity and make for a
companies that had invested in the country.
higher volume of private investment.
2. Causal assumption: the greater the amount of bank money
in a country, the more inclined people will be to enter into
2. IMF, Central Banks.
business transactions, which demonstrates that they trust in
the legal and judicial protection of their contractual rights.
3. Investor surveys.
1. Legal analysis of commercial legislation by a
group of experts in the matter.
2. Legal analysis of a sample of commercial
cases by a group of experts.
3. Analysis of laws.
4. Statistical records of Lower and Magistrate’s
Courts having jurisdiction in commercial
matters.
5.
Surveys
of
businessmen
and
entrepreneurs.
1. Legal analysis of commercial legislation by a
group of experts in the matter.
2. Legal analysis of a sample of commercial
cases by a group of experts.
3. Analysis of laws.
4. Statistical records of Lower and Magistrate’s
Courts having jurisdiction in commercial
matters.
5.
Surveys
of
businessmen
and
entrepreneurs.
Causal assumption: if commercial laws are clear and
foreseeable, and judges are consistent in their decisions,
commercial transaction costs will be reduced, thereby
resulting in a more efficient organisation of production.
4. Causal assumption: where there are good commercial
laws and these are consistently applied, there will be a
greater propensity to have cases heard before the courts.
97
HANDBOOK FOR JUDICIAL DIAGNOSIS, PROGRAM PLANNING AND ASSESSMENT
VARIABLE
INDICATORS AND UNIT OF MEASUREMENT
Predictability of judicial 4. Number of commercial cases filed in the courts.
decisions
5. Percentage of local or foreign-based businessmen and
entrepreneurs who reply that they have trust and
confidence in the judiciary to settle their commercial
disputes.
SOURCE
CAUSAL ASSUMPTIONS
1. Legal analysis of commercial legislation by a
group of experts in the matter.
2. Legal analysis of a sample of commercial
cases by a group of experts.
3. Analysis of laws.
4. Statistical records of Lower and Magistrate’s
Courts having jurisdiction in commercial
matters.
5.
Surveys
of
businessmen
and
entrepreneurs.
Independence of the Dimension 1 indicators
Dimension 1 methods of collection
If the judiciary is independent, it is not susceptible to the
judiciary
opportunistic conduct of the State and parties, thereby
affording greater legal certainty and ultimately reducing
commercial transaction costs.
Duration of
1. Existence of reasonable duration of judicial proceedings 1. Interviews with experts, judges and lawyers. Where duration is lengthy, this increases legal uncertainty
and risk of losses, thereby discouraging capital investment.
commercial court
in commercial matters.
cases
Unit of measurement: yes-no
3. In cases where there were no issue briefs and studies or
2. Percentage of litigants or judges in commercial matters 2. Surveys
official records, a representative sample of cases per
who reply that the duration of court cases is high.
jurisdiction would have to be obtained and the time taken per
3. Ratio: duration of commercial proceedings in days, 3. Issue briefs and studies, official records.
procedural stage then ascertained. This entails a very high
months or years over the regional mean.
financial cost
Unit of measurement: interval
98
5. INSTRUCTIONS ON HOW TO USE THIS HANDBOOK
5.1. GENERAL COMMENTS ON THE USE OF THIS HANDBOOK
1. As indicated above, the aim of this handbook is, essentially, to offer any Spanish
development-aid agent broad and comprehensive information on the area of justice. This
broad goal takes concrete form in other more specific objectives:
a. ascertaining the way in which a judicial system is shaped and how to observe
same;
b. contributing to the problem-identification and -diagnosis phase; and,
c. supplementing the programme planning, follow-up and assessment phases.
2. This handbook is coherent with AECI methodology. It clearly contributes to
complementing the above-mentioned phases. In this respect, it offers autonomy to
Spanish aid officials, whether they are experts or non-experts in judicial matters. Its use
is ancillary to other methodologies of identification and programme formulation developed
by the AECI. It may be viewed as a methodological alternative in the diagnosis and
identification phase, but seeks in no way to replace any of the tools normally used.
3. The AECI’s most frequent methodological tool for the diagnostic and identification phase
is the holding of identification workshops. This instrument slots in perfectly with this
handbook. The complementary nature of its use will be outlined in detail below.
4. While this handbook has many uses, it would nevertheless not seem reasonable for it to
be put to different uses at the same time. It is practically impossible to find the necessary
data to use all the indicators proposed in this handbook and, even if this were feasible,
the effort entailed would be immense. The essential function of the comprehensive
approach that characterised the drawing-up of this handbook was to seek, as far as
possible, to cover the entire spectrum of quality indicators of a judicial system. Yet in no
case does its goal entail all such indicators being used simultaneously. The specific
subject of analysis -the case targeted for study- and the scope and ambition of the
project will be aspects to be borne in mind, and will serve as criteria when it comes to
deciding between some indicators and others.
5. Not all the indicators make reference to sources having an equal degree of accessibility.
There are very easily accessible sources, so much so that they are even available over
the Internet, whilst other data do not exist for the great majority of countries, thereby
rendering it necessary for these to be constructed. Access to some databases is simple,
whereas others require a series of resources that complicate matters enormously.
Moreover, there are important difference as between countries, which means that some
data are accessible in general terms, whilst for others, no comparison is possible, since
they do not exist in many countries. For instance, not all countries enjoy the same level of
development in terms of judicial statistics.
6. The indicators have different degrees of relevance. There are indicators that measure the
phenomenon to which they refer directly and relatively comprehensively, whereas others
only contribute very partially to measuring the concept to which they refer.
7. Not all the dimensions to which such indicators refer have the same importance in all the
spatial and temporal contexts. Each problem is different in each country, and a specific
combination of problems is to be found in each context. The first task of someone
seeking to apply this handbook is to contribute to identifying the precise nature of the
specific combination of problems ailing each country. In general, the superimposition of
problems linked to access to justice, efficacy and efficiency, and legal certainty has a
more direct impact on the citizen body, and solution thereof tends to respond more to
economic-type criteria. In contrast, combinations of problems associated with lack of
judicial independence, control and accountability, basically impact on aspects of a
political nature and their solution tends to be a condition sine qua non for solution of the
remaining problems.
8. The handbook will serve, in some instances, to conduct general studies of a comparative
nature, and in others, to conduct case studies or studies addressing some specific aspect
of the judicial system. Where the aim is to undertake a comparative study, a basic
checklist of indicators applicable to all countries may prove especially useful for the
viability of same. Where the aim is to carry out a case study, it might be practical to target
an area of analysis for in-depth research, by applying the full checklist of indicators
proposed for this specific aspect.
9. If the intention is to make a rapid diagnosis of the general status of the judicial system in
any given country, a short checklist of indicators can be applied. In such a case, a certain
comparison with other countries may be necessary in order to be able to interpret the
results satisfactorily. This is useful to determine which areas are in need of most aid and
support, or which are the most problematic in any given country. Once the area or areas
with the most pressing problems have been identified for any given country, a fuller
checklist of indicators can then be applied in this particular area.
10. Many of the proposed indicators are based on perceptions. As has already been pointed
out in the Methods Section of this paper, perceptions, though a source of indirect
approximation to the phenomenon under study, often constitute the most viable way of
approaching given aspects of the judicial system.
5.2. PROCEDURE FOR DIAGNOSIS AND IDENTIFICATION OF PROBLEMS: FULL AND
SHORT CHECKLISTS OF INDICATORS
As mentioned above, depending on the ultimate aim, it may be of use to have the full checklist of
indicators or to identify those that allow for the swiftest and most accurate overview possible with
limited resources. A minimum checklist of indicators enables one to make a rapid diagnosis of the
quality of the judicial system, though, logically, this can never be as complete and accurate as
that yielded by a more detailed analysis.
To give a clearer idea of the proposed shortlist for rapid diagnosis purposes, the full checklist of
indicators is shown below.
FULL CHECKLIST OF INDICATORS (as previously presented)
INDEPENDENCE
ACCOUNTABILITY
CONTROL
Selection and appointment of judges Method of selecting and Existence of control
appointing judges
constitutionality
ACCESS
Population’s
level
information as to rights
Actor(s) involved in selection of Publicising
of
conduct
judges
criteria for judges, public
prosecutors, police and
public defenders
Judges’ term of office
Clarity of procedural rules
Population’s level of trust in Degree of protection of
justice
private investment
Judges’ salaries
Publicising
decisions
Judges’ perquisites
Quality of information on
administrative functions
Promotion of judges
of
judicial
Level of information on
budgets of the judiciary,
public prosecutor’s office,
police and public defence
Immunity of judges
Level of information on court
applications and lawsuits
Method of disciplining judges
Level of information on
performance of judges,
public prosecutors, police
and public defenders
Actor(s) tasked with disciplining Citizen access to actions
judges
undertaken by judges, public
prosecutors, police and
public defenders
Method of assigning cases
Degree of accessibility to
detainees
enjoyed
by
lawyers
EFFICACY - EFFICIENCY
of Selection and appointment
of judges and public
prosecutors
Degree of compliance with Standards of efficiency of
decisions of the judiciary vis- the
judiciary,
public
à-vis constitutionality
prosecutor’s office, police
and public defence
Existence of judicial review Promotions and transfers of
of administrative legality
judges, public prosecutors,
police and public defenders
Judicial review of decisions Training of judges, public
concerning
disputes prosecutors, police and
between the State and public defenders
private parties
Effectiveness of punishment Salaries of judges, public
of corruption
prosecutors, police and
public defenders
Method
of
internal
administration
Quality of judicial decisions
Enforcement of judgements
LEGAL CERTAINTY
of Degree of protection of
intellectual property
Existence of organisations Clarity of legal provisions
giving instruction in rightsrelated matters
Existence of organisations Stability of legal provisions
that
provide
cost-free
defence
Uniform distribution of Lower Predictability
and Magistrate’s Courts
decisions
Cost of court fees and Independence
charges
judiciary
of
judicial
of
the
Duration
of
judicial Duration of commercial court
proceedings
cases
Degree of formality of
proceedings
Selection and promotion of
administrative and service
staff
Existence of alternative
means of dispute resolution
Training of administrative
and service staff
Existence
of
officiallysponsored free legal aid
mechanisms
INDEPENDENCE
Staff selection and management
ACCOUNTABILITY
CONTROL
Level of information on
number of lawyers
Control of agenda
Existence of NGOs active in
seeking accountability
Budget control
Degree of compliance with judicial
decisions
Interference by government actors
Degree of interference by Public
Ministry
Procedure for gaining entry to the
profession
EFFICACY-EFFICIENCY
Budget of the judiciary,
public prosecutor’s office,
police and public defence
Quality of court, police
prison premises: capacity
and equipment
Duration
of
judicial
proceedings
ACCESS
LEGAL CERTAINTY
Recognition of minority
languages
in
judicial
proceedings
Legal recognition of cultural
minorities’ own disputeresolution mechanisms
Value for money in terms of
fees/quality
of
legal
counselling service
Internal
distribution
of Number of lawyers per
resources in the judiciary territory
and public prosecutor’s
office
Workload per judge, public Existence of information
prosecutor, police and public programmes on the part of
bar associations
defender
Assignment of cases to Relative ease of clientindividual judges, public lawyer communication
prosecutors, police officers
and public defenders
Duration of police detention Degree
of
information
and duration of preventive furnished by lawyers to
detention
clients as to alternative
means of dispute resolution
Method of entering the legal Participation in cost-free
profession
programmes
Quality of legal education
Existence of professional
ethics code for lawyers
RAPID DIAGNOSIS STRATEGY: SHORT CHECKLIST OF INDICATORS
DIMENSION
Independence
Accountability
Control
Efficiency
Access to justice
INDICATOR
Independence in general
SOURCE
Freedom House
Kaufman and others
World Economic Forum
World Competitiveness Yearbook (IMD)
Interviews with experts
Other sources1
Selection of judges based on job-relevant merit
Laws, statistics and interviews with experts
Degree of stability of tenure
Statistics and interviews with experts
Procedure for assigning cases
Laws, statistics and interviews with experts
Extent to which judicial decisions are applied
World Business Environment Survey
Existence of judicial governance body
Laws and interviews with experts
Extent to which judicial decisions are set aside
Statistics and interviews with experts
Publicising of judicial decisions –
Legal and judicial opacity index PriceWaterHouse Coopers
Existence of procedures for registering complaints Regulations, statistics and interviews with experts
Voice and external accountability
Kaufmann and others
Regulations, statistics and interviews with experts
Control of corruption by the courts
Kaufmann and others
Statistics and interviews with experts
Existence of judicial review of administrative
Regulations, statistics and interviews with experts
legality
Existence of control of constitutionality
Laws, statistics and interviews with experts
Honesty of the courts
World Business Environment Survey
Complexity of judicial proceedings
Djankov, La Porta and others, Lex Mundi Project
Quality of the judicial service
Latin American Governance Barometer
(Barómetro Iberoamericano de Gobernabilidad CIMA)
Existence and degree of compliance with
Regulations, statistics and interviews with experts
standards of efficiency
Quality of training of judges
Interviews with experts
Selection of judicial staff
Interviews with experts
Quality of the legal system
International Country Risk Guide
Average duration of judicial proceedings
Djankov, La Porta and others, Lex Mundi project
World Business Environment Survey
Workload per judge
Statistics and interviews with experts
Percentage of computers per judge
Statistics and interviews with experts
Prison status
World Prison Brief
Trust and confidence in the judiciary
Latinobarometro
Latin American Governance Barometer(CIMA)
Proportion of population per court in urban areas Statistics and interviews with experts
Proportion of population per court in rural areas
Statistics and interviews with experts
Amount of court fees and charges in relation to
Statistics and interviews with experts
per capita income
Complexity of procedures and proceedings
Djankov, La Porta and others, Lex Mundi Project
Existence of discriminated minorities
Minorities at Risk
No. of ex officio attorneys per inhabitant
Statistics and interviews with experts
Index of judicial clarity and impartiality
Latin American Governance Barometer(CIMA)
Subjective Indicators (CEJA/JSCA)
There may be very useful country-based or even regional studies in this field. For instance, in the case of Central
America, the Justice Team at Salamanca University has drawn up a questionnaire to be administered to Supreme
Court and other judges, which targets this and other aspects for in-depth investigation.
1
Legal certainty
Equality of treatment accorded to the entire
population by the judicial system
Recognition of Justices of the Peace
Legal recognition of minority languages
Existence of alternative dispute-resolution
mechanisms
Quality, efficiency and integrity of the judicial
system
Complexity of judicial proceedings
Strength of the Rule of Law and governance
indicators.
Protection of property rights
Contracts and Law Index
Freedom House
Laws and interviews with experts
Laws and interviews with experts
Interviews with experts
World Business Environment Survey
Djankov, La Porta and others, Lex Mundi Project
Kaufmann and others
Freedom House
Heritage Foundation - Wall Street Journal
World Economic Forum
5.3. STRATEGY OF APPLICATION OF RAPID DIAGNOSIS
Phase 1: Review of legislation and statistics: overview of the country’s judicial structure.
In the first place, this entails examining the fundamental legislation that affords an overview of the
country’s legal structure, along with statistics compiled by the country’s judicial body.
-
Constitution: section relating to the judiciary
Laws and regulations governing the judiciary
Available official statistics
Additional information: case studies, official judicial web sites, etc.
Phase 2: Review of indices available on the Internet.
There are some indices available with data on most Latin American countries, which, in
addition to expediting the task of rapid diagnosis, allow for inter-country comparisons to
be drawn. The indices referred to are as follows:
· Rule of Law, Voice and Accountability, and Control of Corruption Governance
Indicators, World Bank, Kaufmann, Kraay and Mastruzzi Governance Matters III:
Governance Indicators for 1996-2002, Working Papers Series, World Bank Institute.
Available at http://worldbank.org/wbi/governance/govdata2002
· Civil Liberties Index, Freedom House, Freedom in the World: Annual Survey of Political
Rights and Civil Liberties. Available at http://freedomhouse.org
· Complexity of judicial proceedings Index, Djankov, La Porta and others. Lex Mundi
Project. Available at http://www.worldbank.org./research/pdffiles/lexmundi_paper.pdf
· Latinobarometro. Available at http://latinobarometro.org/ano2002.htm
· Barómetro de Gobernabilidad, 2003 Consorcio Iberoaméricano de Empresas de
Investigación de Mercados y Asesoramiento - CIMA, 2003. Available at
http://cimaiberoamerica.com/barometro2003.pdf
· World Bank World Business Environment Survey – The Voice of the Firms. WBES
2000. Available at http://info.worldbank.org/governance/wbes
· Subjective indicators, Centro de Estudios de Justicia de las Américas - CEJA/Justice
Studies Center of the Americas - JSCA. Available at http://www.cejamericas.org
· Contracts and Law Index. Global Competitiveness Report 2002-2003, World Economic
Forum, Oxford University Press, 696 pp. Available at http://weforum.org
· World Competitiveness Yearbook, International Institute for Management (IMD).
Available at http://www01.imd.ch/wcy
· Property Rights Index from the Economic Freedom Index. Heritage Foundation, Wall
Street Journal. Available at http://heritage.org
· Law and Order Index, International Country Risk Guide (ICRG), The PRS Group.
http://icrgonline.com
· The Opacity Index, PricewaterhouseCoopers. A project of the PricewaterhouseCoopers
Endowment for the Study of Transparency and Sustainability. Available at
http://pwcglobal.com/fr/pwc_pdf/pwc_100068_opacity_index.pdf
· Minorities at Risk (MAR) Project. Available at http://cidcm.umd.edu/inscr/mar/
Phase 3. Conducting in-depth interviews with privileged informants. Choose from among persons
with any of the following profiles (at least five interviews).
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Supreme Court Judge
Member of the Judicial Council
Judge of the First Instance, urban and rural
Public prosecutor
MP with a seat on the Parliamentary Judicial Committee
Member of the Ministry of Justice
Practising attorney
University law lecturer/professor
Member of the Board of Governors of the Bar Association
Member of a legal aid NGO
Member of Chamber of Commerce
Legal counsel to international body
Journalist / sociologist
Draft interview questionnaire:
Is the principle of separation of powers envisaged in the Constitution?
Briefly describe the rules which ensure that certain branches of government do no interfere with judicial decisions.
Does the judiciary have the last word insofar as interpretation of the Constitution is concerned?
Does the Constitution envisage that judicial decisions may only be set aside by appeal to a higher court?
Is the Constitutional Court independent of the executive and legislative branches of government?
Are laws and regulations easily accessible by judges, lawyers and the general public?
Is there an official gazette or bulletin that contains the complete text of statutory provisions?
Are judicial proceedings open to members of the public and the press?
Are court records available to attorneys, the parties and the general public?
Are judicial decisions available to attorneys, the parties and the general public?
Are there any restrictions placed on the media’s coverage of judicial proceedings and decisions?
Are judicial decisions compiled and published? How often?
Do NGOs report on judicial performance in general?
Are there informative statistics available on the number of cases filed and concluded in the judicial system as a whole?
Do public institutions inform citizens of their legal rights? Describe the actions undertaken
Describe the system of legal education
How long is the course leading to an academic and/or professional legal qualification?
Is there any difference between the university law degree and the professional qualifications that a practising attorney is required
to have?
Approximately how many law graduates are there per year?
Does one have to pass some type of examination in order to enter a legal profession?
Is there a special syllabus for aspirants wishing to become judges?
Do judges and public prosecutors receive the same legal education?
How many universities or law schools are there in the country?
What are the university-entrance requirements?
How long is the degree course?
Describe the procedure for becoming a judge.
Describe the type of training offered to new judges.
Who draws up the syllabus for new judges?
Does the State provide any type of service or continuous education for judges? How often?
Approximate number of lawyers in the country.
Percentage of women lawyers.
Do bar associations exist? Is bar membership obligatory?
Are there standards of admittance to bar associations?
Are lawyers free to set their fees as they see fit?
Is there a public defence?
Who provides legal aid?
-the government
-bar associations
-NGOs
Describe the function and structure of the institutional governance of justice
Approximately what proportion of the total national budget does the justice budget represent?
How many people work in the judicial sector?
How many judges are there on the bench of the Supreme Court?
How many judges are there in all?
What is the average salary of a judge?
What is a judge’s average annual case-load?
How many Lower and Magistrate’s Courts are there per 100,000 inhabitants?
Is there good coverage of the territory in terms of Lower and Magistrate’s Courts?
To what extent are judicial decisions applied?
Phase 4. Holding of expert workshops.
This type of action is closely linked to that envisaged in Spanish Aid Project Management
Methodology (Metodología de Gestión de Proyectos de la Cooperación Española)(2001) in
connection with the problem-identification phase. The fundamental purpose of this phase is to
identify the main problems affecting the area of justice under review. On the basis of such
identification, the standard methodology for formulating AECI-sponsored projects can then be
followed by drawing up a “problem tree” diagram with objectives and proposals. However, sight
must not be lost of the fact that this methodological instrument is only one of many, to be
complemented by the results yielded by the above-mentioned instruments.
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