ACCESS TO JUSTICEACCESS TO JUSTICE

LISA L. BHANSALISr. Public Sector Management Specialist

LACPREM

ELEMENTS OF JUDICIAL REFORMELEMENTS OF JUDICIAL REFORM

CORE COURSE ON LEGAL & JUDICIAL CORE COURSE ON LEGAL & JUDICIAL REFORMREFORM

JANUARY 11-14, 2005JANUARY 11-14, 2005

Access to Justice Access to Justice MovementMovement

• 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 MovementAccess to Justice Movement

Three Waves of Reform

1. Legal aid + advice to the poor

2. Class actions and public interest litigation (e.g. street dwellers in India)

3. 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 Administration of Justice in Peruin 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 PeruAdministration of Justice in Peru

Basic Justice ModuleBasic Justice Module

• Decentralization concept

• Located in marginal, urban communities and rural areas

• Agencies housed together for integral services

Basic Justice Module Distribution

Geographic

Region

Justice

Module

Coastal 17Mountains 13

Tropical Zone 4Lima 9

TOTAL 43

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 Purpose of the Gender AssessmentAssessment

• 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 AssessmentPurpose 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

Subject matter (percentage of cases)

46.03%

11.11%

8.73%

7.14%

6.35%

4.76%

3.17%

2.38%

10.32%

0% 10% 20% 30% 40% 50%

Dissolution of marriage

Child support

Infraction criminal

Child custody

Family violence

Material abandonment

Adoption

Visitation Regime

Other

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.

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.

Cultural legitimacy and gender equality - Barriers

Initial Response to Users’ Demands

Claims admitted or dismissed (percentages)

13.33%

60.00%

26.67%

66.67%

33.33%

0%

10%

20%

30%

40%

50%

60%

70%

80%

Admitted ConditionallyAdmitted

Dismissed

Female

Male

Outcomes of Family Violence Cases

Female Plaintiffs

33.33%

66.67%

0%

10%

20%

30%

40%

50%

60%

70%

80%

Reach Judgement Did Not Reach Judgement

Access to Justice: Some Bank ProjectsChile 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