2. An Overview of Judicial Reform in Latin America

Among these authoritarian enclaves is the binominal electoral system. This allows the election of representatives by political coalitions rather than by the individual amount of votes. In this way, if one coalition obtains 60% of the votes, the candidate with the highest votes in that pact wins a chair, regardless of their individual number of votes. The second chair is the candidate with most votes of the second most voted coalition, except in cases where the winning pact doubles the second one. In a system with two main political alliances, this system allows stability, by scarifying representation. Another authoritarian enclave is known as “qualified quorum bills”. These are bills concerning constitutional and electoral issues that require the votes of two-thirds of both representatives’ chambers to be approved (Garretón 2000).

Dezalay and Garth (2002) define these as palace wars or struggles between lawyers and economists for the control of Latin American states. The processes developed in Latin America presume the gain of prestige and power in internal politics for the participants. As Chilean economic growth backed the Chicago model, these participants were more able to use this symbolic power to influence domestic policy. Human rights violations were used as the counterpart of this economic success.

Several authors point out the complicity between the Chilean Supreme Court and Pinochet’s regime. The former gave discretional space to undertake systematic human rights violations (Matus 1999). In fact, in June 2007, Judge Carlos Cerda was given the Gruber Foundation Justice Award for being the only judge pursuing human rights cases when Pinochet was still ruling. However, in those days, he was punished by the Supreme Court through a poor performance assessment, which led to a systematic impediment of his promotion to the Supreme Court.

Throughout the 17 years of democratic government in Chile, there have been changes in the career path of judiciary members and in the establishment of a Judicial Academy. Moreover, there has been a renewal of the judges from the Supreme Court.

For a description of the situation prior to reform, see point 3.

This reform was exclusively of the criminal process. It did not explicitly lead to reform in other branches of the system. Regarding police work, public prosecutors now lead the investigative process. Concerning prison management, an increased efficiency of the system has led to quicker sentencing and, as a result, to an increase in the prison population—a situation that makes reform in the field of prison management a matter of urgency.

The role of the Justice Studies Center of the Americas has been relevant to the promotion of the Chilean reform model.

Further research is needed on whether the implementation of the Criminal Procedure Reform involved changes in crime recording practices. Future analysis of the role of administrative data in monitoring the system’s efficiency should include these considerations.

As DeShazo and Vargas note “the Chilean example is broadly viewed as the most successful in the region, given its ambitious scope, the resources dedicated to the task, and the political commitment to see it through” (2006, p. 2).

Poverty in Chile is measured through the National Socio-Economic Characterization Survey (CASEN) and is based on a fixed monetary poverty line based on alimentary requirements. It involves both government agencies (MIDEPLAN, National Institute of Statistics—INE) and international organisations (Economic Commission for Latin America and the Caribbean—ECLAC). Several critics have been made of the poverty measurement model, mainly because its alimentary requirements have not been updated since 1986–87.

Penal populism is defined as “the pursuit of a set of penal policies to win votes rather than to reduce crime rates or to promote justice” (Roberts et al. 2003: 5).

The use of data on incarcerated people is viewed generally as a proxy to measure the expansive or contractive character of the penal system (see Wacquant 2004).

Amnesty was applied to all who had been incarcerated or sentenced for political crimes or common crimes related to political activities. The original text says “Conceder amnistía amplia e incondicional en aplicación del artículo 205, Numeral 16, de la constitución de la república, a todas las personas encausadas o detenidas, sujetas a proceso en cualquier tribunal de la república, o sentenciados, que hayan sido acusados por los delitos políticos y comunes conexos contemplados en el artículo 335, numeral 6 del Código Penal (…)” [Translation: Grant wide and unconditional amnesty in the application of article 205, number 16, of the Constitution of the Republic, to all processed or arrested people, subject to penal process in any court of justice of the republic, or sentenced, who were accused of political crimes or common crimes related to them contemplated in the article 335, number 6 of the Penal Code(…)] Decree N° 30–90 of 14.12.1990, available at www.​bcn.​cl (national congress’ library website)

Decisions about early release or other intra-penitentiary benefits, such as nocturnal imprisonment, are made not by penitentiary authorities, but by the Ministry of Justice’s regional delegate. This passes the responsibility from technical to political fields.

For information on the role of media in this period, see Ramos and Guzmán (2000).

These measures included a general amnesty for those convicted of political crimes.

One particularly interesting programme was called “Open Doors”. On this, citizens could know the activities of the police by regular meetings between police officers and neighbourhood associations, and also by visiting police stations. Also, in the creation of the Public Security and Information Office within the Home Office provided intelligence analysis for the disarticulation of subversive in a collaborative way with police intelligence agencies. This institution gave rise to the Public Security and Information Division, which led to both the Public Security Division and the National Intelligence Agency.

An equivalent development in English language literature is the concept of penal populism (see footnote 11).

For information on prison management see Stippel (2006).

This efficiency feature of police agencies (value for money) is highly valued in the framework of the New Public Management movement. However, Hough (2007) notes that, in England and Wales, the pursuit of simple quantitative targets in police work can reduce the legitimacy function associated with it.

Hand kissing involved promoting oneself, personally or via influential contacts in the judiciary, in order to obtain a mid- or high-level court appointment, or an accommodated administrative law role, such as Notary. This practice dated from colonial times, lying in courtesan customs, where applicants for high-level posts, in order to be approved by the King of Spain, required the consensus of the notables’ assembly and the personal approval of the Viceroy of the viceroyalty of Peru. This meant that several of these appointments were available exclusively to close relatives of serving high-level judges.

No new cases have been dealt with using this model of criminal procedure since 2005. Nonetheless, cases remaining from the old system need to be solved through it.

As Jackson (2002) rightly notes, the term inquisitorial is constructed in opposition to the adversarial trial. The concept is usually misleading, because it is used to define concrete legal systems, in particular those from a Civil Law tradition. The author suggests that it could be more useful to analyse justice systems in relation to the rights that the accused has. Furthermore, the author emphasises the relevance of defining a fair trial, based both on the idea of equality of arms between defence and prosecutor, and on the idea of an impartial adjudicator. As we will see, both arguments would lead us to classify the Chilean system as inquisitorial.

One example is the Leyes Cumplido (Cumplido bills), named after the Chilean jurist Francisco Cumplido. They resulted in the prohibition of the practice of keeping an accused person incommunicado for indefinite periods and the requirement to present the accused before a judge in less than 48 h.

This is a tool that prosecutors have in order to improve the efficiency of the prosecution. It allows them to not pursue prosecution, or to abandon it, in cases that are deemed irrelevant because they do not seriously affect the public interest (this could include, for instance, cases of petty crime, cases where the evidence is insufficient to initiate a successful prosecution or cases of first-time offenders).

One of the new regulations under the reform was a tougher control of police detention. If someone is detained by the police, it has to be presented before a court within 24 h. If this does not occur, the accused should be released and requested to appear before court on the following day.

For an overview of access to justice for the poor in Latin America, see Vanderschueren and Oviedo (1995).

Little research has been conducted on the link between progressive implementation and the improvement of the operation of public services. A phase model should allow organisational learning and a better assessment of risks for the new intakes of the reform.

The Chilean CPR is considered a pure development, as the sentencing tariff was not transformed at the same time. Currently, the revision of a new criminal code is under discussion.

Stippel (2006: 72) shows that 53% of the penal population is serving a sentence of five years or more.

Although there has been discussion about what fear of crime is (see Farrall 2004; Hough 2004; Lee 2007), in this paper the concepts of “fear” and “worry” about crime will be used interchangeably and refer to a long-lasting dimension of fear.

In this work, actors and stakeholders will be used interchangeably.

For a full history of the involvement of Agustin Edwards in Paz Ciudadana and the role of El Mercurio, see Ramos and Guzmán (2000).

The CJSA is based in Santiago de Chile and is currently the main exporter of the Chilean model of judicial reform to the region. It is directed by Juan Enrique Vargas, a former CPU researcher and current Diego Portales University Professor.

The former chief of this unit was Carlos Maldonado, who later became Minister of Justice between 2007 and 2010.

The use of music as a way of promoting reform is a component of another judicial reform project, proyecto acceso, managed by the California Western School of Law. This was one of the institutions with which the project had close relations, mainly due to the personal friendship of their coordinators.