ELEMENTS OF JUDICIAL REFORM CORE COURSE ON LEGAL & JUDICIAL REFORM JANUARY 11-14, 2005 ACCESS TO JUSTICE LISA L. BHANSALISr. Public Sector Management SpecialistLACPREM
Access to Justice Movement • 1960s: Arose in era welfare state and growing rights consciousness • Criticized for being too narrowly directed at procedural access, rather than substantive justice • Rights-based approach (Univ. Declaration, ICCPR, Econ., Social & Cultural rights) Access to Justice Movement
Three Waves of Reform • Legal aid + advice to the poor • Class actions and public interest litigation (e.g. street dwellers in India) • Broad, systemic reform social justice
Access to Justice • A right to legal representation/assistance • ADR movement (US-led) case management (delays) • Mediation or arbitration (who? cost?, criteria? monitoring?) • ADR in family disputes? Community violence? Chambers of Commerce?
New approaches to Access to Justice • Critics argued that access to justice reform has focused too much on procedures and courts • Today’s reformers want to affect social outcomes --Pro se --Public legal education and human rights --De judicializing --Focus on supply and change management
Administration of Justice in Peru • Much of Peru’s territory lacks services of the State, among them, justice. • The justice sector’s institutions are largely concentrated in urban centers, limiting access to huge numbers in rural and economically disadvantaged populations. Administration of Justice in Peru
Basic Justice Module • Decentralization concept • Located in marginal, urban communities and rural areas • Agencies housed together for integral services
Basic Justice Module Distribution
Service Delivery in Justice Modules • Separate administrative from judicial functions • Internal regulations require coordination among actors • Represented agencies of the sector: • Judiciary (Specialized judges and justices of the peace) • Public prosecutor (provincial and adjunct prosecutors) • Ministry of Justice (Legal and public defender and conciliation centers) • Social workers\ translators
Legal Aid Centers – ALEGRA(Asistencia Legal Gratuita) • Bank not financing legal aid itself • Support for more functional service delivery oriented at poor clients • Builds on the Colombia experience with “Casas de Justicia”
Colombia Casa de Justicia • Since 1995 with positive results, user satisfaction and institutional commitment • Formal and informal (non-state) services • Peace culture • Permits wider coverage of agencies • Involves the community in the problem solving • Uses ADR • Public education in human rights
Diagnostic Tool For Assessing Gender Disparity in Judicial Services
Purpose of the Gender Assessment • Overall Objective • Evaluate gender equity issues relevant for strengthening the effectiveness of judicial organizations and enhancing access to justice in Peru • Specific Objective • Identify critical areas where gender-responsive actions are likely to enhance project effectiveness Purpose of the Gender Assessment
Legal Framework • International Conventions • 1992 Convention for the Discrimination of all forms of discrimination against women (Optional 1999 Protocol) • 1994 Inter-American Convention to Prevent, Sanction and Eradicate Violence against women • Constitution • General Legislation: Criminal and Civil Codes • Special Legislation: • Laws No. 26260, 26763, 26872 (on Family Violence) • Law 26873 (on Conciliation) • Supreme Decree No. 002-98-JUS.
Caseload of family courts
Most common cases in Family Courts • 46% of the cases were about marital separation; however, the data does not tell us whether the separation was by mutual consent or not. • 6% of the cases were about family violence, coming on appeal from the peace judges jurisdiction (despite the fact that family courts also have first instance jurisdiction on this matter).
Child Support:Barriers to Access • Procedural barriers to effective justice: • Hearings are frequently adjourned causing parties loss of time and attorneys’ fees. • Enforcement is a major problem and custodial parents cannot pursue the additional procedures to collect child support.
Cultural legitimacy and gender equality - Barriers In general, men and women prefer the peace judges system, which enjoys considerable cultural legitimacy. However, in cases of violence and family related issues, women are increasingly more vocal about their dissatisfaction.
Initial Response to Users’ Demands
Outcomes of Family Violence Cases
Access to Justice: Some Bank Projects Chile Capacity Building for Legal Practitioners (IDF) --design curriculum for international law and women's human rights; --clincial program to write legal briefs and participate in moot court exercises; and --creation of a web-based exchange for information sharing and technical assistance. Strengthening Uruguay's Justice institutions for equitable Developement (IDF) --Development of strategic framework --Multidisciplinary training for judges, state attorneys, public defenders, academia, lawyers, --Focus on gender-based violence Ecuador Law and Justice for the Poor (JSDF) --Indigenous dispute resolution and applicable legal framework --Peace culture (training program in elementary schools) --ADR --Public Defense Service, including bar association and law schools
