Quito, Ecuador July 24 th , 2003

1. Promoting Judicial Independence and Accountability through a Participatory Methodology and Increased Access to Information:A Model State of the Judiciary Report for the Americas Quito, Ecuador July 24th, 2003

2. A Model State of the Judiciary Report for the Americas • Key interrelated themes that must be integrated into any comprehensive judicial reform program: • Judicial Independence • Judicial Accountability • Judicial Corruption • Best consensus strategy is to promote transparency • Tools to enhance transparency and quality information: • State of the Judiciary Report • Academic and applied research • Access to information laws, policies and decisions; • Conflict of interest and income and asset disclosure laws

3. Developing the Model Framework for a State of the Judiciary Report: IFES Methodology • Long process that began 4 years ago with the development of the Judicial Independence Guide; • Broader analysis beyond the research in the Guide, led us to the conclusion of the urgent need for a standardized monitoring and reporting mechanism;

4. Developing the Model Framework for a State of the Judiciary Report: IFES Methodology (Cont’d) • We identified consensus and best practices based on a comparative analysis of: • Key international treaties, conventions and case law; • Key non governmental protocols, declarations and emerging best practices; • Current academic and applied research, including all accessible best practices and lessons learned papers. • Based on our comparative research and analysis, there was consensus on 18 Judicial Integrity Principles;

5. Developing the Model Framework for a State of the Judiciary Report: IFES Methodology (Cont’d) • We then reflected upon our own experience in research, policy-making and programming and conducted internal meetings and informal discussion with experts from all regions to refine our thinking; • We designed a model framework for a State of the Judiciary Report; • The implementation of the State of the Judiciary Report would allow us to monitor reforms in Latin America and increase access to high-quality comparative judicial information.

6. Context for the Americas: Common Problems • Growing distrust of democratic institutions; • Rising rates of crime, unemployment and poverty; • Low ranking on global public, business and government perception surveys.

7. Global Perception of Corruption (2001)* * Source: World Bank – Kaufmann, Kraay, and Zoido-Labaton (2001). The indicator has been normalized from 0 to 1m with higher scores indicating lower levels of corruption.

8. Confidence in the Judicial System (2001)* * Source: Latinobarómetro 2001. The scores represent the percentage of those who expressed that they have “a lot” or “some” confidence in the judiciary.

9. Context for the Americas: Common Achievements of the 1980s and 1990s • Democratization and adoption of important bilateral and regional trade agreements; • Many judiciaries are now more independent and viable; • Positive impact of reforms on human rights; • Stronger and more effective civil society and advocacy groups; • Regional commitment to fight corruption; • Trend for more open government and access to information.

10. Selected Lessons Learned from Judicial Reform in the Americas • Legal and judicial reforms are fundamentally political and crosscutting; • The reform process should thus be strategic, transparent, participatory and linked to broader reforms; • Judicial independence, accountability and corruption issues are inextricable linked and must therefore be balanced;

11. Selected Lessons Learned from Judicial Reform in the Americas (Cont’d) • New institutions created to promote judicial independence, transparency and accountability, such as the judicial council or ombudsman, must also operate in an independent, transparent and accountable manner and be subject to checks and balances; • Public trust in the judiciary and the reform is the sine qua non condition to developing a rule of law culture.

12. Ideas for Future Programming Directions • More holistic, participatory and transparency oriented programming linked to larger political reform agendas, including: • Securing more resources for high priority reforms • Promoting more transparent judicial career processes • Adopting access to judicial information laws and policies • Reducing the cost and time in accessing the judicial system, e.g., small businesses and individuals • Supporting public education and coalition building • Addressing systemic judicial corruption and the fair and effective enforcement of judgments • Implementing a standardized participatory monitoring and reporting framework.

13. Promoting Judicial Independence and Accountability: “From Cairo to Quito” Quito, Ecuador July 24th, 2003

14. IFES Judicial Independence and Rule of Law Research and Toolkit • Judicial Independence Data and Conferences • Additional Research and Programming: • Rule of Law Tools • Enforcement of Court Judgments • Legal Barriers to Small Business Development • State of the Judiciary Report

15. Guidance for Promoting Judicial Independence and Impartiality (Fall 2001) • Case Studies: • Africa: Kenya, Malawi, Nigeria, Uganda, Zambia, Zimbabwe • Americas: Argentina, Bolivia, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Panama, Paraguay • Central and Eastern Europe: Bulgaria, Georgia, Poland, Romania, Slovakia, Ukraine • Other: Egypt, the Philippines • Key Topics: • Judicial Independence and Accountability • Transparency • Civil Society

16. IFES Judicial Independence Matrix* * The numbers correspond to the three categories designed by IFES for purposes of analysis of the data gathered through its multi-faceted research: (1) Enabling Environment, (2) Transparency, (3) Accountability.

17. Confronting Interference through the Institutional StructureResearch Findings and Lessons Learned • Key institutional arrangements include: • Transparent and objective appointment process • Transparent and objective promotion and disciplinary processes • Broad membership in judicial councils • Security of tenure • Judicial administrative and budgetary control • Adequate judicial salaries and resources • Fair and effective enforcement of judgments

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

19. Selection and Appointment of JudgesIFES Analysis of Summer 2000 USAID/IFES Surveys Argentina Chile Costa Rica Paraguay Dominican Republic Haiti El Salvador Honduras Panama Peru * N/A = Guatemala The results are based on Summer 2000 answers an IFES/USAID questionnaire, except for Peru (2001) and Haiti (2002)

20. Regional Conferences: the Honduras Judicial Independence Conference (April 2002) – Central America • Honduras Agreement • Signed by the three branches of the State • Adequate budgetary resources • Need for legal reform • Objective and transparent judicial evaluation • Implementation of a judicial independence strategy • Civil society participation

21. Regional Conferences: The Second Arab Justice Conference (Cairo, February 2003) – Middle East and North Africa • Cairo Declaration • Country and regional coalition to promote and support judicial independence • Commitment by the three branches of the State • Participation of civil society • Establishment of priority consensus reforms • Standardized monitoring and reporting tool

22. Judicial Independence: An Isolated Phenomenon? • Recurrent Themes • Corruption • Effectiveness • “I won, but I did not collect” (Brazil) • Need of a Holistic Strategy • Additional Research • Transparency • Barriers to the Enforcement of Court Judgments • Small and Medium Enterprises (SMEs)

23. How to Increase Transparency?Research Findings and Lessons Learned • Transparency reforms are among the most important and crosscutting; • Transparency reforms promote open government and increased access to information; • They enable citizens and reformers to identify barriers to reforms, identify priorities and monitor progress.

24. How to Increase Transparency [Cont’d] Research Findings and Lessons Learned • The simultaneous promotion of judicial transparency and efficient court operations includes: • Reforming court organization • Publishing judicial decisions • Reforming criminal procedure codes • Civil society monitoring • Disclosure of judges’ income/assets

25. IFES Judicial Transparency Index 2000*

26. Barriers to the Enforcement of Court Judgments and the Rule of Law:Highlights from IFES Global ResearchSelected Findings from IFES Enforcement Country Papers on Selected Countries [Argentina, Mexico, Peru, France] and from Targeted Country Research in Latin America [Argentina, Mexico, Peru] SPRING 2003

27. IFES Research Methodology • Review and analysis of existing research; • Detailled analytical studies of the process and legal framework of enforcement in selected countries; • Specific country research and comparative analysis, including the analysis of the political and socioeconomic context, interviews of experts, surveys of stakeholders and case studies in selected Latin American countries.

28. Key Barriers to the Enforcement of Judgments and the Rule of Law • Primary objective: • Identification and analysis of the barriers to the enforcement of judgments in civil and commercial matters and of the enforcement of judgments against the State • Selected key findings: • Time, cost, corruption and trust are important deterrents • Clear identification of key causes of delays • Weak or not fully utilized judicial powers • Expensive or inaccessible information about the debtor and his/her assets

29. IFES Enforcement of Civil and Commercial Judgments Matrix* * The numbers correspond to the three categories designed by IFES for purposes of analysis of the data gathered through its multi-faceted research: (1) Enabling Environment, (2) Transparency, (3) Accountability. The highlighted boxes represent the topics on which IFES’ report focuses more in-depth.

30. Key Barriers to the Enforcement of Civil and Commercial Judgments Expert Survey Results – Latin America [Arg, Mex, Peru] Fall 2002 * This chart presents only the 5 most important obstacle to the fair and effective enforcement of civil and commercial judgments as identified by the experts surveyed. The highest score (5) represents the most important obstacle.

31. Main Reasons for Delays in the Enforcement Process IFES Argentina and Mexico Case Studies – Fall 2002 * This chart presents only the main reasons for delays in the enforcement process, as ranked first, second or third by the expert surveyed.

32. The Cost of Resolving Conflicts for Small Businesses: The Case of PeruLegal Barriers to Micro, Small and Medium Business Development and the Costs of Access to Justice in Peru Prepared for the Inter-American Development Bank SPRING 2003

33. Legal Barriers to the Development of Small and Medium Enterprises [SME]: The Case of Peru • Primary objectives: • Analisis of the modes of conflict resolution of SMEs and of their relationship to the legal framework and judicial system; • Analysis of the potential economic impact of the lack of access to the justice system. • Selected key findings: • SMEs avoid the judicial system to resolve their conflicts; • The lack of confidence in justice leads to inefficient behaviors; • Increased reliance and trust on the judiciary would increase sales and investment.

34. Main Reasons for the Failure to Enforce the Laws and Regulations Fairly and Effectively – Micro v. Small-Medium BusinessesIFES Analysis of the Peru SME Survey Results – December 2002 * Results based on the answers to Q17.a of the Peru SME Survey of the 66 businessmen surveyed. The highest score represents the most important reason.

35. Elementos destacados PYMES • Distortion regarding delays; • High perception of systemic corruption; • Lack of legal services; • Lack of transparency.

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

37. Conclusions (Cont’d) • Conduct empirical research; • Several international instruments contain monitoring mechanisms: • Corruption (OECD, OAS), environment, labor. • Promote a mechanism to develop, collect, systematize information related to the judiciaries in the Americas.

38. A Model State of the Judiciary Report:A Strategic Tool for Promoting, Monitoring and Reporting on Judicial Integrity Reforms SUMMER 2003

39. IFES Framework for a Model State of the Judiciary Report • Tool designed to promote regional harmonization, best practices, lessons learned and a more competitive efficient reform process across country borders; • Participatory monitoring and reporting tool geared towards promoting broad support for and understanding of reforms.

40. IFES Framework for a Model State of the Judiciary Report (Cont’d) • The framework for a State of the Judiciary Report is a standardized flexible tool designed to: • Promote the implementation of judicial independence, judicial accountability and anti-corruption priority reforms; • Encourage the development and dissemination of quality information on high priority principles and reforms; • Obtain resources for targeted reforms.

41. IFES Judicial Integrity Principles

42. JIP.9 Adequate Qualification and Objective and Transparent Selection Process • Selected Indicators: Judicial Selection Process • Is the judicial selection process transparent? • Is the judicial selection criteria transparent? • Is the judicial selection process politicized? • Are candidates vetted professionally and publicly? • Are selection criteria and procedures publicized? • Is the judicial selection process participatory in practice?

43. Composition of the Judicial Council in Selected Latin American CountriesIFES Analysis of Summer 2000 USAID/IFES Surveys

44. JIP.14 Income and Asset Disclosure: Argentina* • The Argentine Law appears to meet global standards on paper: • Who should disclose: Public officers, elected officials, judges, their spouses and minor children. • Which assets: Income, movable and unmovable assets, stocks, cash deposits, credits, liabilities. • Identification of assets: All assets should be clearly identified. • When to disclose: Disclosure to be done at the beginning and end of the term, as well as annually. * In Argentina, income and asset disclosure is regulated by the Public Ethics Law (Law #25.188) and regulatory decrees.

45. JIP.14 Income and Asset Disclosure: Argentina (Cont’d) • However, compliance with the law appears questionable in practice, at least with regard to the judiciary: • Enforcing authority: • For central administration officials: anti-corruption office; • For judges: the Supreme Court; • For members of parliament: the presidency of their respective chamber. • Accessibility of the information disclosed: • Only publicly accessible for central administration officials; • For judges, only accessible at the discretion of the Supreme Court. • Sanctions: Existing sanctions, but it is unclear whether they are sufficient or applied in practice.

46. Asset and Income Disclosure Obligations in the Americas (“yes” in red and “no” in blue) * This table is based primarily on IFES analysis of country answers to the questionnaire of the Follow-up Committee of the Inter-American Anti-Corruption Convention and on independent additional research.

47. Conclusion One way to promote the next generation of reforms is to implement a standardized participatory monitoring and reporting framework that simultaneously promotes transparency, accountability and public trust: AN ANNUAL STATE OF THE JUDICIARY REPORT FOR THE AMERICAS