Latin American countries have shared information among each other on judicial reform in the development and expansion of their justice systems, but what about reforms taking place in the rest of the world? Can the experiences of judicial reform initiatives from other regions assist in this process?
This first chapter of Justice Beyond Our Borders gives an overview of judicial reforms from around the world that have potential application to courts and judicial systems within the Latin American region. Model practices in civil justice are considered, and best practices in criminal justice, and those applicable to civil and criminal proceedings, are outlined. The aim is not to provide wholesale transferable models nor to impose ‘recipes’ for reform, rather the practices described are intended as recommendations for further study, the potential use of which would require adaption to the realities of each particular country.
A variety of practices are evolving to administer civil justice, each developed with particular outcomes in mind. For example, case management procedures and practices and alternative dispute resolution mechanisms attempt to increase efficiency, whilst public interest litigation attempts to provide the means to address injustice for the vulnerable and oppressed. Practices identified for consideration include the following:
- Differentiated case tracking systems, where the court becomes a party to litigation cases, its resources are not demanded as free goods by the litigants and prompt settlement of disputes is encouraged
- A variety of non-tracking case management tools, responding to greater complexities in litigation, improved understanding of the economics of judiciaries and litigation, technological advances in courts and increased demand
- Public interest litigation, which in India for example is led by the judiciary, may serve to strengthen civil society. However, it may also result in socially wasteful and inefficient litigation
- Various types of alternative dispute resolution including the mini-trial, a formalised structure for settlement negotiation.
Lessons and implications learnt from the various best practices in criminal justice and best practices applicable to both civil and criminal proceedings analysed include the following:
- The reform of criminal procedures in Italy separates prosecutorial and judicial functions. However the lack of institutional reform separating the career path of prosecutor and judge may limit the success of this procedural reform
- The boards of conflict resolution in Norway, attempt to reconcile victim and young offender and to rebuild collapsing social networks that are isolating juveniles in towns and cities and increase efficiency in the legal system
- Changes to victim participation procedures may serve to alter the negative perceptions of justice systems in some countries
- The development of specialised courts for certain types of proceedings facilitates expertise in complex areas and decreases the likelihood of arbitrary decision-making. However, it raises difficult questions concerning the allocation of resources
- Improvements in Legal Aid and access to justice encompass a variety of funding models which are not mutually exclusive, though models may vary depending on whether legal services are for access to civil or criminal justice.
