“The reasonable man adapts himself to the world: the unreasonable man persists in trying to adapt the world to himself. Therefore, all progress depends on the unreasonable man.”
Man and Superman-George Bernard Shaw
Today we live in an accelerated way, as a consequence of the advances in communications and technology, which generates unlimited space to innovate and grow, when we contrast this with what has been happening with the Judiciary, it gives the impression that the latter was alien to the revolution we are living, as if it had been trapped in time, making the same mistakes of the last century, establishing a culture in which the forms are the ones that prevail, under a system of absurd work distribution rules, and turning its back on criteria such as quality and efficiency.
My appreciations are based on my experience as a litigant lawyer, a permanent user of this system, and to better explain my position I consider appropriate to deal with some aspects of the judicial practice from points of view that could correspond to a Judge, the party claiming justice and the lawyer.
THE JUDGE
Receives more workload than any lawyer in the private sector attends. A study published in 2015 determined that the Judicial Branch has a procedural load of 3’042, 292 files, of which 55% corresponded to the accumulated from previous years, and 45% to current load. There are 200,000 new cases per month, and the gap as of 2014 was 1’865,361 cases[1], the growth of the load is much greater than that of the discharge. A judge spends his time attending to the public, conducting hearings, dispatching his staff and then reviewing his cases, when does he study, or when is he trained, I do not know; is it possible that he knows the cases he is in charge of, it is a fact that he knows the details of very few.
The criteria used to distribute files among judges is not based on the difficulty of the case. Magistrates belonging to the same specialty are assigned an equal number of cases, but the same magistrate may receive five highly complex cases out of the ten assigned to him, while his neighbor receives ten very simple cases. The time of dedication to each process depends, among other factors, on the level of difficulty of the controversy. If the distribution does not consider this factor, the judges who are assigned a greater number of complex cases will not be able to attend to their work in an efficient manner.
Specialty is another factor. For example, a Civil Judge may receive an eviction claim, as well as a claim for compensation for environmental damages, or another to determine liabilities based on the analysis of accounting audits of great difficulty; unlike arbitrators who can be assisted by professionals recognized for their prestige, judges, with some exceptions, must resort to experts registered in the Registry of Judicial Experts, who are randomly assigned to the case by the system, and who generally do not have the stature to participate in a highly complex judicial controversy. That is to say, many times judges do not have the knowledge required by the matter in conflict, however the State assigns them the responsibility of resolving the same, without giving them the support tools required for this purpose, generating greater uncertainty and frustration in the client.
Our system has divided judges into titular, provisional and supernumerary, the last report published in 2015, determines that of our 2,912 judges (1 judge every 10,697 inhabitants), 386 are provisional, 1689 titular, and 837 supernumerary[2]; a provisional or supernumerary judge has no security in his position, and is subject to the decisions of the President of the Court to which he belongs, which detracts from his autonomy and independence.
THE PARTY
Whatever the outcome of your process, I am sure that in the opinion of a person who has gone through the Judiciary, this is an experience that he would prefer not to repeat, rather than ask for guardianship, whoever is going to claim his rights, will surely prefer to give his counterpart more concessions than he would be willing to give, and reach a very bad settlement, in order to avoid a judicial process. The system is perverse: the one who is at fault has more advantages over the one who claims, and it is inefficient, as it imposes burdensome hurdles to the one who demands justice.
Another problem is the uncertainty about the final outcome. One can be right, but throughout the process the parties experience a series of situations that are not in accordance with rationality, they must face the criteria of judges who do not know or understand their cases, which is evident in the hearings or in the decisions they issue; in addition to their own frustration due to the delay in obtaining justice that is elusive to them, and because they must travel a road full of obstacles typical of disorganization.
The procedural deadlines established by our laws do not even serve as a reference for what happens in reality. We have the judicial strikes, which occur every year. The last strike of 2016, paralyzed the system for approximately 45 days, a period in which the dates of hearings were frustrated, which surely the parties had months waiting for them to be given How many rights became unrealizable due to the suspension of work of the Judiciary, we do not know, but the cost to the country is very high, starting with the delay suffered in obtaining justice, which is not only the 45 days of strike, but the accumulation of work that contributes to the lag of the judicial system.
THE TRIAL LAWYER
Being a trial lawyer is complicated. First of all, you must inform the client what it means to enter the judicial system, the road to travel, the duration of the processes, the uncertainty whose consequence is the lack of legal certainty, the changes of judges, one is careful that the judge in charge knows his case, but suddenly it can be changed and a new judge is appointed, with another type of criteria, and management, to start all over again.
We lawyers prepare ourselves to orally report a case in order to persuade the judges of our position. It is frustrating to go on the day of the report to the corresponding Chamber of the Superior Court or Supreme Court, and find that on the same day, at least 15 more reports will be made together with ours. There are Chambers that group all the reports in the same day of the week; the question that one asks oneself is, what can remain in the Magistrate in charge of your processes of the presentation that you made, if that same day for more than 3 hours he listened to the arguments of lawyers in totally different subjects, with the aggravating factor that the sentence that is issued is improbable to be issued in a term less than two months after the report was made. Is the oral report of any use, is it worth it to prepare ourselves and to load those hours of work to our client?
The hearings, at least in the civil jurisdiction, are recorded in a written record, and when they are evidentiary hearings in which there are interrogations, they must be recorded in the record, and in that transit the impact of the same is lost, generally after the question has been asked and answered, the judicial assistant and the Judge adapt the text of the question to the question to be answered, In those moments everything is chaos, lawyers and parties struggle either to keep the answers as they were given, or to fix the sense of the same when they perceive that the initial one is not convenient, the purpose of the interrogation is distorted.
There are many evils that afflict our system, these are just some of them, corruption is another, this is born for different reasons, it is a complex issue that deserves its own space, however it can be seen that just as there are people who are naturally corrupt, there are also those who are not, but the inefficiency of the system and the urgency to obtain protection puts them in such a situation, that in order to get their papers to move forward or their reasons to be evaluated, they give up their principles, and buy in the black market of justice what the Judiciary is currently unable to provide.
These measures include adopting anti-corruption policies, appointing a compliance officer who can oversee anti-corruption policies, training officers and staff, conducting corruption risk assessments, undertaking due diligence on projects and business relationships, as well as reporting and investigation procedures[1].
In this context, this international certification could have positive effects on state contracting if at least the Organismo de Supervisión de las Contrataciones Estatales – OSCE – considers it as a qualification and evaluation indicator in public tenders. Currently, according to the Annex to Communiqué No. 003-2016-OSCE/DTN of OSCE-[2], the “anti-corruption management systems” of the bidders are not evaluated, but only the factors “price offered” and “environmental or social sustainability”; Regarding the latter factor, for example, when dealing with procedures for execution of works, only the indicators “occupational health and safety management system” and “environmental management system” are evaluated.
For this reason, we are of the opinion that the indicator “Anticorruption management system” should be included in the Annex of Communiqué No. 003-2016-OSCE/DTN, as part of the evaluation of the factor “social sustainability”, with the objective of qualifying the quality of the supplier with respect to the credibility of good anticorruption practices, as well as transparency in public tenders. It would even have other legal effects, such as an exonerating or mitigating circumstance of administrative or criminal liability of the corporate body.
However, due to the different types of companies that exist in the national market and the variety of selection procedures (Goods and Supply of Goods, General Service, Execution of works, consulting in general, etc.), the OSCE would have to determine in which cases it would be necessary to accredit this international certification; since, for example, in low budget procurements, in which micro and small companies normally participate, it would not be coherent to require the accreditation of this international certification.
In this sense, we believe that international regulations undoubtedly bring a new perspective on anti-corruption compliance, not only as an instrument of self-regulation and prevention of future corruption offenses within the business or governmental organization, but also as an efficient instrument at the service of society, which not only decides to supervise but also to participate in government procurement, making it an indispensable initiative for the supplier to have an effective anti-corruption compliance program.
1] See URL: http://www.globalstd.com/quien-es-globalstd/iso-37001-sistema-de-gestion-anti-soborno. Date of Consultation: 20-12-16.
2] Thus in URL: http://portal.osce.gob.pe/osce/sites/default/files/Documentos/legislacion/Legislacion%20y%20Documentos%20Elaborados%20por%20el%20OSCE/Comunicados/2016/ANEXO%20COMUNICADO%20003-2016-DTN-MODIFICACIONES%20A%20LAS%20BASES.pdf. Date of Consultation: 22-12-16.
