“Effectivisation”: A post about the law (and reforming it)

Bolivia is currently reforming its justice system. On October 31, the Bolivian Parliament passed a new piece of legislation, called the Law for the Decongestion and Effectivisation of the Criminal Procedure System. In case you were wondering, it’s Ley de Decongestionamiento y Efectivización del Sistema Procesal Penal in Spanish – and “efectivización” isn’t a real word in Spanish either, hence the weird translation.

The reason we’re talking decongestion and effectivisation is that one of the greatest weaknesses of the legal system here is the constant delays affecting all cases. Law 568 is a temporary measure modifying the Criminal Procedure Code until a new code can be drawn up. Its key aim is to address this very problem.

Process is at the heart of justice – as important as a just result is a just procedure to arrive at that result. I’ll confess I’ve forgotten a lot of what they taught me at law school, but this particular principal of justice has stuck with me. Working at IJM Bolivia, I am struck anew by how much of a paradox this often is.

The same process which ensures a trial is fair is the very reason a trial takes 3-8 years to complete, thus working against the interests of justice. Delays can disadvantage both the victim and the accused – the victim because they must endure years of going back and forth to court (sometimes giving testimony multiple times), the accused because they may be in preventative detention for up to a year without charge, or two years without having been sentenced.

Placeholders for "citizen judges" in a courtroom in  the city of El Alto. This particularly bench was to be made up of 2 professional judges and 3 lay judges.
Placeholders for “citizen judges” (jueces ciudadanos) in a courtroom in the city of El Alto. This particular bench was to be made up of three lay judges and two professional judges (jueces técnicos). Under the latest reforms, citizen judges will no longer form part of the Bolivian criminal justice system.
In this context, Law 568 seems like a welcome and overdue reform. But, of course, things are never that simple. The legislation involves a few important changes, all of which carry their own pros and cons:
  • It abolishes the participation of “citizen judges” (jueces ciudadanos), who sit alongside professional judges. The process of selecting and appointing candidates adds to the length of the legal process. The argument against this change is that members of society should have a real say in how serious crimes are punished.
  • It abolishes a pre-trial hearing stage which lasts up to 16 months and is notorious for delays. The audiencia conclusiva is the stage of the process in which the court determines whether evidence has been legally obtained; this change (actually a reversion to the previous procedure) means these issues will be dealt during a different stage of the process.
  • It limits judicial recesses to 16 hours. However there is a conflicting provision not addressed by the new law, allowing for postponement of up to ten days. Until such time as a judicial bulletin or a regulation clarifies how the provisions will operate, this remains unclear and the new rule is likely to be ineffectual.

It’s no exaggeration to say that most of the hearings IJM lawyers attend are postponed – again and again. Often they’ll travel up to an hour to court to find it’s been cancelled because the public prosecutor, defence lawyer, the accused or the victim’s guardian hasn’t shown up. Sometimes this is a deliberate delaying tactic; sometimes it’s simply an unavoidable scheduling clash. Either way, it’s wasted time. It’s frustrating and it’s not fair for anyone involved. The word for judicial delay in Spanish is retardación, which I think is so much more powerful and descriptive than our English term.

However, it has been argued that although many politicians have a legal background, the legislators don’t have an intimate understanding of the justice system in practice. Some in the legal community are saying elements of the raft of reforms are arbitrary to the point of breaching personal rights, for example, the ability for judges to sanction lawyers for delays, or the ambiguity around how long a person may remain in preventative detention. Some say the problem lies not in the content of the procedural laws, but rather in their application.

I’m not sure I know enough at this stage to take a side on this new law. What I can say is the fact that the need for reform is being recognised and acted upon is a good thing. Not only is this a sign that things are progressing, moving forwards – it’s also an environment in which IJM can make a positive contribution. That’s exciting 🙂

Note: All opinions expressed in this post are my own and should not be taken to reflect the position of IJM or IJM Bolivia.

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