The transparency of justiceIgnacio González Vega
In spite of transcendental changes in the Spanish Administration of Justice and in the profile of its judges from the democratic transition to the present day, the studies of opinion that are carried out periodically show that Justice still has a negative image among the majority of the general public. The most widespread opinion among the Spanish during these years is that Justice in our country is malfunctioning. Apart from those who have had to go to court, among which the opinion of a number of the general public prevails who believe that the Administration of Justice works reasonably, in contrast to those who consider that it works badly or quite badly.
This dysfunction clearly confirms that the knowledge of the Spanish population in general about the Administration of Justice does not correspond adequately to reality, unjustifiably contributing in an way to the delegitimization of a State power that provides an essential public service for the functioning of our democracy. In any case, that Justice works better than people who have not used it might think does not mean that it works properly. "In reality," says Toharia Cortes, "the image that Justice has in our society is neither so negative nor only negative. Moreover, it seems to be undergoing slow but clear improvements in those of its facets that are perceived or valued more critically by the general public.
The two main complaints that Spanish public opinion has against its Administration of Justice are referred to the perceived slowness of its operation and its low degree of its accessibility. In the case of slowness, the opinion is almost unanimous that Justice is usually so slow that it is better to avoid going to it and that, in any case, when you win a little lawsuit it usually is not worth the paper it is written on, as sentences are rarely carried out promptly or adequately. However, those who are users of this public service have a much less negative opinion, considering that the legal correction in the resolution of litigation is more important than the agility in its conclusion.
Language and complicated procedures
This contradiction can only be adequately resolved when definitive, official and reliable data on the actual length of processing in judicial procedures in our country are known, with a detailed identification of the malfunctions caused by such delays, their real causes and those responsible for them. If this objective is not achieved, the evaluation of the public service of the Administration of Justice will depend on biased information, rumours, obsolete realities and unusual cases that get fed back, as highlighted in the Survey of users of the Administration of Justice, published by The General Council of the Judiciary. Regarding the accessibility of justice, a majority of Spaniards believe that "language and court procedures are excessively complicated and difficult for the average citizen to understand," and others point out that "costs of all kinds going to court usually ends up not compensating for doing so".
The two main complaints that Spanish public opinion has against its Administration of Justice are referred to the perceived slowness of its operation and its low degree of its accessibility
Even worse than the General Council of the Judiciary, despite the thirty-seven years since its entry into operation, a high percentage of Spaniards do not yet have a reasonably clear idea of their functions and responsibilities. And the more it fails to be consolidated institutionally among the general public, the more critical is the assessment of its functioning. An overwhelming majority accuse it of lack of transparency, a high percentage do not consider it independent of government and political parties, and do not believe that he adequately fulfils their function of defending the independence of judges and tribunals.
The State Pact for Justice Reform signed in 2001 between the two major political parties, being Secretary of State for Justice, the current Minister, Rafael Catalá, was contemplating "the preparation of a Bill of Rights of the general public before the Justice, that had to attend to the principles of transparency, information and adequate attention and to establish the rights of the users of the Justice".
A justice that protects the weakest
This Charter was finally approved unanimously by all the parliamentary groups in the plenary session of the Congress of Members of Parliament on 22nd April, 2002 as a Proposition, not as a Law. We should note that, unfortunately, it has so far been the only initiative in the field of Justice which has drawn the unanimous support of all political forces, even when it lacks the value of law. In its preamble, the charter states that at the threshold of the 21st century, Spanish society urgently demands a more open justice system capable of serving the general public with greater agility, quality and efficiency, incorporating more modern and advanced methods of organization and procedural instruments. A system which is transparent, understandable, attentive to the citizen, responsible to needs, agile and technologically advanced and, finally, protective of the weakest - that is to say, victims of crime, minors, disabled people, foreigners who are vulnerable or at risk of social exclusion.
The Judicial Transparency Plan, approved by the Council of Ministers' Agreement on 21st October 2005, states that the rigorous, proven and reliable knowledge of the relevant statistical data of the Spanish judicial system has to serve in a concrete way, and at least for the achievement of the following objectives:
Implement new and modern criteria for service management. Among the purposes of the Transparency Plan that would derive from this general objective are the following:
Provide and plan the needs for the development of new judicial bodies or the modification of the judicial demarcation
Provide for and plan the needs for the development of new organs of the Public Prosecutor's Office or the modification of the existing ones
Plan the supply of material and personal resources of the Administration of Justice by each of the competent Public Administrations
Identify the need or advisability of specialization of judges, courts and prosecutors in certain matters
Check the possibility of articulating a system of natural substitutions between holders of its own bodies and, as the case may be, of a different jurisdictional order, depending on workloads and compliance with objectives
Identify the average duration times of the phases of each of the procedures, their total duration and the deviations in the processing time of each type of matter with respect to the legally established deadlines
Consult the average duration of similar procedures and be able to compare the deviation produced with respect to the mean
To know the number of indications and the holding of judgments by a judge in the organs of the same class of the same judicial party, and in general
Identify the most frequent resolutions and also the ones most revoked by the higher courts
Establish an adequate system for the evaluation of the performance of judges, prosecutors, court clerks and other officers of the bodies serving the administration of Justice
Identify possible critical points in the organization of the judicial office, so that the General Council of the Judiciary and Secretaries of Government can reasonably programme their inspections
Identify possible critical points in the work of public prosecutors to schedule the work of the Tax Inspectorate
Improve access to information on judicial activity. This objective has to be achieved through at least the following tools:
Articulate a reasonable system of access of professionals and the general public to the information on the state in which the procedures in which they are involved
Consult dates and times of the trials to which the general public and professionals who represent and defend them and other incidents that may occur
Provide the Courts with information about their own activity, by itself and in comparison with the information obtained from the organs of the same jurisdictional order and judicial party, as a minimum
Provide prosecutors with information about their own activity, by itself and in comparison with information obtained from the other prosecutors of the same High Court of Justice, as a minimum
Contribute to the planning, development and evaluation of appropriate legislative policies. To achieve this objective, it is essential to:
Introduce reliable statistical data on the most relevant and representative litigation of each jurisdictional order, specifying in particular the operation, deployment and outcome of the reforms introduced in the legal system
Obtain reliable statistical data on crimes and penalties, evolution of the criminal litigation, with geographical criteria, of the perpetrators of crimes or offenses -sex, nationality, age, socioeconomic status-, population size and other parameters considered relevant
Progressive implementation of the principle of transparency
In the criminal judicial order, it is reasonable for the achievement of the purposes of general crime prevention to include in the statistical information, not only objective data of the procedure but also socioeconomic and family characteristics of the affected individuals. This information will enable not only the instigation of care work for those most in need, but also a social and educational work that will ultimately be the main way to avoid situations such as destitute children becoming juvenile delinquents and then offenders when older; that minors become abusers when older; to continue the current situation of lack of public awareness about the prevention of crimes that affect the community, for example in environmental matters.
Spanish society demands a more open justice system capable of serving the general public with greater agility, quality and efficiency, incorporating more modern and advanced methods of organization and procedural instruments
In relation to the General Council of the Judiciary, to adapt its action to Law 19/2013, of December 9, on transparency, access to public information and good governance, its Permanent Commission issues an agreement on 18th November 2014 approving the protocol of integration in its internal organization of the management of requests of information of the general public. Previously, it had launched its Transparency Portal in July 2014. Two years earlier, with the same purpose, it updated its regime of management control and transparency. Finally, the plenary session of the governing body of the Judiciary approved the 2015 Protocol of Communication of Justice, in which the Offices of Communication stand at the cornerstone of the communication policy of the General Council of the Judiciary. Without them, it is not possible to convey the work that the judges do to the public or fulfil its commitment of transparency.
In short, in recent years we have seen the gradual implementation of the principle of transparency in the actions of the public powers, and among them, the judiciary, has still a long way to go to achieve those goals that the approval of the aforementioned Charter of Rights of the general public before Justice encouraged.