Report No. 12777-EC Ecuador Judicial Sector Assessment August 19, 1994 Public Sector Modernization & Private Sector Development Division Country Department lii Latin American and the Caribbean Regioni MICROGRAPHICS Report No: 12777 EC Type: SEC Document of the World Bank Currency Equivalents Currency Unit = Sucres (S/.) US$1.00= S/.1,868 Sf.1.00= US$0.000535 Fiscal Year: January 1 - December 31 GLOSSARY OF ACRONYMS ADR - Alternative Dispute Reslution Mechanisms CLD - Latinoamerican Development Corporation ILANUD - United Nations Affiliated Latin American Institute for the Prevention of Crime and Treatment of the Offender LA4TF - Country Department 4, Trade and Finance Division in the Latin American & Caribbean Region UN - United Nations USAID - United States Agency for Intemational Development ECUADOR JUDICIAL SECTOR ASSESSMET TABLE OF CONTENTS I. EXECUTIVESU MARY SUAR..................................... 1 . INTRODUCTION .......................................... 3 m. OVERVIEW OF THE JUDICIAL SECTOR . ..................... I ... 3 A. Private Setr Ineraction With The Judiciary .....................5 1. How The Private Sector Uses the Judiciary ...... ............ 5 2. Obstacles Facing The Private Sector ...................... 6 B. Judicial Institutions .................................. 7 IV. COURT CAPACITY ....................................... 10 A. Court ................................... 10 B. Budget ....................... .................... 12 C. Planning ........................ 13 D. Human Resources ........................ 14 E. Ifformation Management .15 F. Infrastructu ....................... 16 G. Judges ........................ 16 . Quality Of Judges ....................... 16 2. Appointment Of Judges ....................... 17 3. Removal Of Judges ........ ............... 18 4.SaifesOfl Judges ........................ 19 H. Rommendations ....................... 20 V.LEGALEDUCATION ............................. 20 A. Law Schools .............................. 20 B. Continuing Legal Education ............................ 22 C. Recommendations ............................ 22 VI. BAR ASSOCIATION ............................. 22 A. Orgazaon ............................. 22 B. Disciplinay System For Lawyers ............................ 23 C. Recommendations ............................. 24 - Om~b~*. 10 ." M-t. *lfwf ii - VI. ACCESS TO JUSTICE ................................ 24 A. LegalAid ............... 25 B. Public Defenders ............... 25 C. Court Costs ................ 26 D. Recommendations ..... ............... ................ 27 VII. ALTERNATIVE DISPUTE RESOLUTION (ADR) MECHANISMS AND SMALL CLAIMS COURTS .............. 27 A. Use Of ADR In The Chamber Of Commerce .27 B. Use Of ADR In The Code Of Civil Procedure .30 C. Use Of ADR I The Mistry Of Labor .30 D. Smal Claims Courts .31 E. Recommendations .31 IX.LEGAL REFORMS .3.1... 31 A. Civil Procedure Refom .31 B. Crimil Pre-edure Reform .32 C.GenderIssues .33 D.Adminitive Procede .334 E. Organic Law Of The Judiciary .36 F. Recommendations .37 X. CONCLUSION .37 MATRIX .38 MATRIX(con't) .39 ANNEX I.40 ANNEX 2 ................................................41 AINNEX3 3.42 ANNEX4 .43 L. EXECUTIVE SUMMARY 1. Historically, the judicial sector has suffered from a lack of financial resources, administrative inefficiencies and a growing case backlog. This situation has resulted in the sector's inability to meet the needs of the private sector and the public at large. A well- functioning judicial system should be accessible to the public providing efficient and rational onitcomes and providing adequate remedies. However, the judiciary in Ecuador does not offer rational or efficient service. Therefore, the public lacks confidence in the system. The root of this problem lies with the legal system and judges, court employees and lawyers alike. In December 1992, the constitution underwent reform in order to address some of the systemic problems which have plagued the judiciaty for years. However, there is widespread recognition by government officials, the judiciary and the private sector that additional reforms are necessay to modernize the legal system. 2. Such reform would benefit the private and public sector. Judicial reform is an essential part of private sector development and public sector modernization. A well-functioning judiciary is important to economic development. Private sector investment can be inhibited by several factors including high transaction costs and weak enforcement of legislation. Transaction costs for businesses may inclu& political uncertainty and legislation that creates barriers to operations, entry or exit of businesses. For example, businesses may have limited access to credit. In addition, weak enforcement of legislation may also inhibit investment. Enforcement includes the enforcing agents, procedures and predictability of outcomes. Since laws are not self- executing, enforcement of laws is an essential part of private sector development. 3. In May 1993, the Country Department 4, Trade and Finance Division in the Latin American and Caribbean Region (LA41TF) conducted a questionnaire survey to determine the constrAin to Ecuadoran prvate v -ctor development. The results of the 68 enterprises surveyed indicate that the judicial system is considered to be the sixth most significant constraint to private sector development.1 Since enforcement has historically been weak, it is important that the judiciary be improved as part of private sector development. 4. If Ecuador is to reform its judicial system with the objective of making it more efficient and effective, there are several changes that are needed. Although ideally the system as a whole should be reformed, reform efforts can be prioritized. The following is a list of priorities which is based on the sector review and the recent constitutional reforms. First, the capacity of the courts needs to be improved, which involves strehening the administration of the court and revising the organic law and Procedural Codes in a way that will enhance efficient processing of cases and introducing a uniform Code of Administrative Procedures. Second, the standards for professional iesponsibility and conduct for judges and lawyers need to be improved. The procedure for selection of judges, a judicial ethics code and disciplinary system for judges need to be reviewed. In addition, the role of the bar association should be increased and the lawyer discipline procedures should be improved. Third, the legal system and its remedies must be made more accessible to the public. This would involve restucturing the system of public lAccording to the surey, the most significant constraint to prvate sector development were as follows: political i htability, inflation and price instability, lack of skilled labor, lack of infrastrure, high level of taxation, fnmcdoning of the judicial system, regulatory constaints, access to credit, and lack of services. -2- defenders, creating programs for legal aid, and creating and impleme a schedule of official court costs. In addition, alternadve dispute resolution methods need to be expanded and small claims courts should be established. Fourth, legal education should be reformed. This includes reformig the law schools, establishing legal education forjudges, and continuing legal education for judges and lawyers (see Matrix). Such efforts would make for a stronger, more predictable, and more efficient enforcement of laws. -3 - H. INE RODUCTION 5. The legal principles supportng the prevailing economic system in Ecuador are based on the freedom to exercise individual rights and property rights. Protection of these rights requires clearly defined rules of law and effective mechanisms to enforce them. This could in turn provide for a stable legal envirownent for economic decisions to be made in a predictablc way. In short, economic risk can be calculated, but uncertintes as to the legal framework and its enforcement should not enter into such calculations. Economic decisions should be based on economic criteria- market efficiency and the realization of the growth potential in the economy. 6. Under the existing judicial system, however, the laws are in some cases unclear and the way the courts apply the laws is uncertain. Court decisions are not always founded upon sound legal reasoning, there are delays in resolving cases, and litigation costs are high. In some cases, investors have found it takes up to 10 years for a commercial case to be decided. Foreign companies, which already encounter barriers to entry, may be further discouraged if the judicial system creates additional barriers to their operation in Ecuador. Since the legal system is not rational and the laws are subject to wide interpretation and changes, there is an incentive for corruptive behavior. This report serves to provide the urrent condition of the judicial sector as well as suggest reforms. III. OVERVIEW OF THE JUDICLAL SECTOR 7. The two most prevalent problems in the judiciary are that the system is inefficient and that it is plagued with accusations of corruption. Delay in court processing is a common problem throughout Latin America. The root of this problem lies with the legal system and judges, court employees and lawyers alike. Factors contribing to the current sitation of the court system include low compensadon, low employment standards, and no incentive for court employees to move cases through the system efficiently. This state of affairs leads to abuses of the system. 8. Fmstration with the judicial system's slow rate of processing cases, coupled with a belief that corrupt practices would adversely affect the outcome of a law suit has given rise to litigants' reliance on negotiation and settement as the primary means of resolving disputes. Internatonal companies and the most prominent nadonal companies which have the resources to resolve their conflicts effectively and avoid the overburened judicial system, primarily rely upon negotiation or arbitration in order to avoid formal judicial mechanisms. However, in those instances where negotiation or other mechanisms fail to resolve the conflict, claims are taken to court, iut may take up to ten years to resolve. 9. The country's deep-seated socio-economic inequalities and the court's severe resource constraints in the face of rising demands present obstacles to an impartial administion of justice. In addition, the performance of the judicial sector has been impeded by several other factors inclding the perception of increasing politicization of the courts,2 even though article 2The poticia of the cou often reaes beyod the Supreme Court. The Guyas Superior Court is frequently mentioned as a highly poLitcized court. 96 of the Constitution ensures that the judicial branch is mdependent. These factors have appeared to compromise the independence of the judicial sector and have led to the erosion of the basic principle of the separation of powers between the executive, legislative and judicial branches of government.3 10. Mainaining the independence of the judiciary depends on several factors. One of these factors includes the need to have a separate budget that the judicial branch itself controls and manages. The budget must permit the judiciary to administer justice in an efficient and effective manner with qualified personnel. Judicial appointments are also important for an independent judiciary. Sudges as well as personnel should be appointed based on the highest standards of merit and personal integrity. Recruitment and compensation based on merit ensures that there is institutional competence. In addition, the terms of judicial appointments can play an important role in allowing judges to make decisions free from outside pressures. 11. Independent judicial systems which function effectively are complemented by several factors. Among the most important is the concept of a bar association, which should attempt to improve the system through close collaboration with the courts and Congress. Also, a bar association should exercise a vital role in disciplining its members who do not conform to ethical standards, and in encouraging its members to be on the alert to report the behavior of judges which does not conform to legal and ethical norms. In Ecuador the bar association does not appear to be performing these essential roles. Instead, members of the bar are perceived to be the primary agents of corruptive behavior, and though the bar takes positions regarding judicial reforms, its members are frequently perceived as being compromised because of alegations of corruPtion. 12. Ecuador has had more than eighteen constitutions since 1812, the most recent in 1979. The 1979 constitution underwent reform in December 1992, in wbich the judicial system perienced a major structural change. Const$itonal and statutory changes included- doubling the size of the Supreme Court, creating a Judicial Council, redefining the jurisdictional role of the Supreme Court, creating a new mechanism for the selection of judges, and increasing the judicial budget as well as salaries. These recent changes reflect the first significant steps to address some of the systemic problems which have plagued the judiciary foi years. The reforms ar* aimed at crang a more accountable administative structure which is capable of addressing the pressing problem of delay. In this way, the Ecuadorian reforms mirror similar efforts in Chile, Colombia, Costa Rica, Peru, and Venezuela. 13. Despite the recent reforms, there is widespread recognition by government officials, the judiciary and the private sector that additional legal reforms are necessary to modernize the legal sm in Ecuador. Such reforms would include revising the Procedural Codes to imclude oral processes, creating uniform Administrative Procedures, increasing the use of arbitration and mediation, improving the administration ofjustice, creating a continuing legal education program for lawyers and Judges, improving the legal education system, establishing small claims courts, increasing the number of public defenders, and improving the overall infrAStructure of the judiciary. 3Artidles 59(c) and 139 of the Constiution. - 5 - 14. These envisioned changes represent a profound adjustmelt to the legal system. For such changes to be successfully implemented there must be a capacity to organize, administer, and educate. Although efforts are underway to build such a capacity within the judiciary, and while a few non-governmental organizations are directing their energies to this task, this is not enough. This capacity may have to come from outside sources and technical assistance. 15. Generally, changing the legal framework requires a significant level of consensus among those directly affected. In 1992 a new Criminal Procedure Code was presented in Congress after having been developed without any broad based public participation. The Code did r.ot pass into law because the affected legal community had not participated in its development.4 This example serves to illustrate that all envisioned changes will require an extensive process of consensus-building and education about the potential impact from such changes. A. Private Sector Interaction With The Judciary 1. How The Private Sector Uses the Judiciary 16. As discussed, the most prevalent probleris of the judiciary are delay in case processing, and accusations of corruption against lawyers and judges. Due to the increasing problem of delay, the private sector uses the system according to the assessment of the risks in doing so. Some of the factors taken into consideration when deciding whether to use the judiciary or an alternative means available to resolve conflicts in a more expeditious, less costly and less risky environment are the length of time needed to obtain - final decision, the costs associated with litigadon, the knowledge of the judge on the matter, and the costs related to influencing judicial officials for case processing. 17. The judicial system should ideally provide confidence in its ability to render fair and impartial judicial decisions, but this is not the case. Since the judiciary has proven itself incapable of meeting the demands and needs of the private sector, serious attempts have been made to setde cases through extrajudicial means such as negotiation or arbitration. The existence of legal uncertainty has caused the private sector to establish its own methods of confl:- resolution over which it has more control, and private lawyers have often disclosed their preference for avoiding the formal judicial process. 18. Large enterprises such as banks, insurance companies, and industries are in the best position to resolve conflicts among themselves due to the resources available to them. Negotiation enable, the parties to go to the heart of the conflict for speedy resolution. However, negotiation has its limitations. When there is a necessity to execute a negotiated agreement or there are legal principles involved, the judicial process becomes essential to resolve these issues. 19. The smaller economic entities also rely on negotiation but not to the same extent as larger enterprises. Some lawyers who represent these smaller entities feel that they are not as familiar 4The daft Crimnal Code is now being reised with the support of Corporaci6n L,adoamericana Para el Desaffoio (CL)). - 6 - with the technique of negotiation, which leads them to rely more often on the formal judicial system. 2. Obstacles Facing The Private Sector 20. The combined issues of delay and cormption create an environment of legal uncertany such that the private sector is inhibited. Factors contributing to the obstacles faced by the private sector is the perception that incentives are needed by court personnel to process cases which might otherwise stand idle for months or years, and that ex parte communication is often abused. 21. Contributing to the perception of extraordinary delay is the fact that some cases may take up to ten years to be decided. Although the laws specify time limits for different phases of a trial to be completed, these time limitations are regularly ignored. In addition, parties bave a tendency to appeal every case.5 This occurs for a variety of reasons. One such reason is that it may be beneficial to drag the case out until the amount demanded is worth less due to inflation. Additionally, since there are no filing fees or appeal bonds, parties are not dissuaded from appealing their cases. 22. The degree of case backlog appears to vary with the type of court and its location. In the large cities, the Superior Courts have lower backlogs than compared to the First Irstance courts. In the provinces the situation is somewhat different. The First Instance courts do not have a tremendous backlog, but the Superior Courts do have backlog because the appeals are so voluminous.6 23. In Ecuador's two largest cities, Quito and Guayaquil, delays are at every level of the system, from the First Instance courts right up to the Supreme Court. Since the late 1970's the populations in the cities of Quito and Guayaquil have doubled, and the number of case filings have similarly increased, yet the number of civil and commercial judges in those cities did not increase undl just recently. 24. Recent statistics indicate that the Supreme Court has a 12,000 case backlog, with 7,000 of those cases in the Civil Chamber (Sala) alone.7 Fewer cases are resolved in a year than the total nunber of cases that enter the system that year. Accordingly, the backlog passes on from one year to the next (See Annex 1). One source estimates that there are 500,022 cases 5The Chief Justice of the Superior Court of Cawr reported that 80% of the cas are appealed. 61n Guamote, where more than 60,30 people use the court, there have been 193 new cases since the beginning of 1993, and 145 cases were decided as of September 1993. The judge here estimated that it takes 10-12 days for a decision to be made on a difficult case and less time for simpler cases. Many cases mvolve disputes concening land ownership and registering of births which were not filed on time. 7staistics from the Supreme Court as of September 1993. - 7 - backlogged in the whole judicial system.8 By law, cases are moved through the system by the parties rather than by the judge. If the parties fail to pursue a case for some period of time, the judge may dismiss it. However, judges are usually very lenient if a lawyer asks to have the case reinstated and continued. For this reason, there are many cases listed as pending for years. 25. In some cses verdicts are determined later than the law allows. Failure of judges to observe the mandated time limits is caused, or at least exacerbated, by what many judges believe to be unrealistic deadlines set by the codes. The codes fail to recognize the burden of responsibilities a judge faces as administrator, adjudicawor and in some cases investigator. Part of the problem is due to the lack of adequate clerical and office support. In as attempt to address this particular problem, the Constitution stipulates that unjustifiable delay in the admnistration of justicu is prevented by law. It even goes so far as to state that judges may be removed or held liable for damages and injuries sustained by parties as a result of delay. This provision, however, is not enforced. 26. Even if the idea of settlement conferences was itoduced, judges do not have the power to require the parties to attend a setdement conference. This restricts the judge's and the court's ability to engage in any lind of delay reduction. 27. The judicial system will need to undertake serious steps to reduce delay. Delay reduction strategies require an adminisave infrastrcture within the judicial system that does not presently exist. This infrastructure must be capable of managing its resources and managing the flow of cases. The development of these capacities in trial courts must be combined with development of similar capacities in Superior Courts and the Supreme Court. The objective is to have efficient case processing; however, efficiency mnust be measured by effectiveness. Slow case processing may prevent a party from recovering the actual value of the case. Efficient case processing is essential to conserve economic resources of the litigants and the public, and for the effective delivery of justice. B. Judicial nstitutions 28. Article 99 of the Constitution establishes the following judicial institutions: the Supreme Court, Superior Courts, Adminisrtive and Tax Courts (Tribunales Distritales), Tribunals, and First Istance Courts (Juzgados). There is also a Tribunal of Constitutional Guarantees, but it is not under the judicial function.9 There are also separate First Instance Courts (Juzgados) that have special jurisdiction in areas of minors, hydrocarbons, water, customs, land, mines, military, and police which do not depend on the judiciary. In theory there should be regional tax and administrative courts in every province, but this may not be feasible.10 All the 8Concept Paper For A Projea To Streng The Adminition of Justice in Ecuador For Tbe United States Agency For Intenational Development Mission To Ecuador By Development Associaes Inc., Marh 1993, p.S (hereafter Development Associates). One must keep in mind that the bacog data include some cases which are filed and never move past the first filing. 9Tribuna Supremo Electoral is not under the judicia branch. lOSo far there are tax and adminirative courts in a total of four provices. - 8 - administrative and tax cases will first go to the administrative and tax courts at the Superior Court level (Tribunales Distritales). The view shared by many judges and officials working in the judicial system is that the organizational structure was created for another period in history and has outlived its usefulness. 29. The Supreme Court, located in Quito, is the national court, and is comprised of thirty-one justices including the President of the Supreme Court, organized into six Chambers (Salas). There is a specific Chamber (Sala) for Civil, Constitutional, Penal, Administrative, Labor, and Fiscal cases. According to the constitutional reform of 1992, the Supreme Court will become a court of cassation and only hear cases on mattets of law, much in the same manner as an appellate court under the Anglo-American common law system. 11 This was done, in part, to reduce the caseload of the court. Appeals can therefore end at the Superior Court level without continuing to the Supreme Court. In this way the Superior Court is a final instance court. If there are contradictory findings on a single point of law at the Superior Court level, the Suprenrn Court may issue a norm. 12 This norm will hold as law until a later law determines otherwise. 30. However, these reforms may have inadvertently compounded the problem of delay. Since there are five judges in each Chamber (Sala), there are now two more judges in the Chamber (Sala) than before who must review the case and draft an opinion. A decision which before normally took about three months now takes more than eight months. 31. The Superior Courts have both appellate and original jurisdiction. In theory each province is supposed to have a Superior Court; however this is typically not the case because some provinces are so small that they must share a Superior Court with adjoining provinces. Four of the twenty-one Provinces do not have a Superior Court.13 Tax and Administrative Tribunals are separate courts but are at the same level as the Superior Courts in the judicial hierarchy, and depend upon the Supreme Court for their budgets. 32. The First Instance Courts (Juzgados) deal with civil, penal, landlord/tenant, labor, and traffic cases. Every Province has a criminal and civil court, but may not necessarily have labor, landlord/tenant or trffic courts. The Supreme Court determines the mnmber of judges and the territorial jurisdiction for the civil First Instance Courts (Juzgados) and criminal tribunals, whereas for labor, landlord/tenant, and traffic courts the Supreme Court designates the Superior Court of that region to determine the number and territorial jurisdiction of the courts. There appears to be no correlation between the number of courts and the number of new case filiDgs or population, however. For example, in Pichincha there are twenty-one civil First Instance Courts (Juzgados) to serve over two million people whereas in Azuay there are eighteen for only 600,000 people. Azuay had over twelve thousand new cases in 1992 while Pichincha had about twenty-five thousand. lILey de Casaion, Regstro Official N. 192, May 18, 1993. 121he Supreme Court must consitly rule three ti on the same issue for the decision to be obligtory. 13Galapagps, Morona Santago, Sucumbios and Zamora. -9 - 33. Constitutional review includes three constitution-interpreting insttutions- the National Congress, the Supreme Court, and the Tribunal of Constitutional Guarantes. The Tribunal of Constitutional Guarantees hears cases related to violations of the Constitution. The Tribunal may rle that an act or law is unconstitutional, but it does not have the power to enforce its ruling. The Tribunal's decisions on whether a law is unconstitutional must in turn be submitted to tbe Constitutional Chamber (Sala) of the Supreme Court. A decision by the Supreme Court on the matter is final and of general application. However, under Artcle 139 of the Constitution, the National Congress retains the ultimate right to interpret the Constitution, dws calling into question the separation of powers between the judicial and the legislative branches of government.14 34. The members of the Tribunal of Constitutional Guarantees have a four year term. In the past the members were not necessarily lawyers; this has now been changed, and members must comply with the same requirements as the Superior Court. These changes will not be implemented, however, until the terms of appointment have expired for the current members of the Tribumal. 5 35. The Solicitor General (Procurador de la Naci6n) is the sole judicial repreative of the State and is appointed for a term of four years. The Solicitor General (Procurador de la Naci6n) represents the State in civil matters in which the State is a party, and in crininal matters where public monies and agencies are involved. Chief Prosecutor's Office (Ministerio Fiscal General) represents the interests of the people of Ecuador. The Prosecutors (Fiscales) work under the Public Ministry (Ministerio Pdblico) which is headed by the Chief Prosecutor (Ministro Fiscal General de Justicia). The Public Ministry (Ministeio Pblico) is at the present time, however, a part of the Solicitor General's Office (Pruraduria) headed by the Solicitor General (Procurador General). The prosecutor, under the inquisitorial system of law, has a limited role which includes intervening in the process, almost always in writing, for the purpose of assisting the investigating judge by suggestng areas of investigation or witnesses to be interviewed. In reality, the prosecutor is basically a passive bystander in the proceedings. Judges often complain that the support given to them by the prosecutor is inadequate and creates more of a burden on the judges themselves. The role of the prosecutor will have to change if the oral criminal procedure is adopted where the prosecutor will assume investigative responsibilities. 14Currently there is a group m Guayaqil working on a Consttuional Control Law which would clay the role of the Tribunal of Constiuional Gu_ae, the Supreme Court and the Congres. 15Although the teWms have already expired, Congess has yet to replace any of the members. - 10- IV. COURT CAPACITY A. Court Adm on 36. The Supreme Court of Ecuador has had the responsibility of being both the court of last resort and the administraive supevisor of the entire judicial systm. The exercise of both these functions was much easier in the past when the volume of case filings was not as large as today. Recently, however, these two responsibilides have created significant burdens on the court as an instiution. The Supreme Court has been dedicatig over four days a week to adminisaive matters which is in addition to the time spent by judges on c-. anissions to develop administrative proposals. 37. The President of the Supreme Court is responsible for the administration of the Supreme Court and all other courts in Ecuador. The President's duties include the selection of personnel, preparation of the budget, signing checks and conducting adminisative task4. These responsibilites make the President an administrator rather than a judge. Directors of the cental administaive units report direcdy to the President who is already burdened with most decision- making responsibilities regarding administrative matters, interfering further with the President's, judicial responsibilites. The Presidents of the Superior Courts also report direcdy to the President of the Supreme Court on administrative matters. They have the same administratve re§ponsibilities faced by the President of the Supreme Court at the national level. They order materials, sign checks, secure monthly funding from the Supreme Court and oversee the activities within their jurisdicton. It is estimated that these judges spend seventy per cent of their time on administratve matters, and some judges spend up to 100% of their time on admainistrative matters. The impact is so significant that it inevitably affects the courts' primary task of deciding cases. 38. One of the main criticisms of the court administraton system has been the excessive entralization of authority within the Supreme Court. Compounding the problem is the level of disorganization within the cental ad son which effectively prevents any delegadon of authority. In response, the President of the Supreme Court has recruited a professional Executive Assistant to begin addressing these organizational issues. The objective is to permit judges to spend more time on cases while allowing professionals to improve the administration and management of the court. The Executive Assistant functions as the coordinator and supervisor for the essental central planning, personnel, finance, infasucture, stastics, procurement, automation and other administrative services. In the past five months, Budget, Finance and Human Resources Directors have been hired as well. They have reorganized the centrl administrative office into five divisions: Planning, Adminisation, Information Systems, Budget and Finance, and Human Reorces. 39. The Executive Assistant has initiated a series of administrative reforms to address the internal operational deficiencies, such as organizing a budget process, reforming the purchasing system, developing a human resource system, planning for new judgeships, and planning the physical plant needs of the system. The President of the Supreme Court has delegated the necessary authority to the Executive Assistant so that he can implement the necesary organiational changes and begin to make a positive difference in the day-to- adminison. - 11 - 40. The current administrative philosophy seeks to distribute responsibility to the Supervising Presidents of the Superior Courts. In addition, the Supreme Court has proposed that each province will create a new professional position called a District Court Administrator to manage the funds and all the administaive aspects of the system. This decentralization strategy is designed to develop an administrative capacity which can govern itself and initiate administrave solutions to address some of the problems that the system faces. It is also intended to develop management mechanisms to monitor the performance of the judges. 41. In order to address the need to coordinate all court activities and operations, it was decided recently to establish the National Judicial Council (Consejo Nacional de la Judicatura) which would be responsible for the adminitation of justice. When the Judicial Council is established, the central authority figure for management and nistration of the court will be the President of the Judicial Council. Management in general has been historically poor in Ecuador, therefore, it would be essential that the members of the Council be of highest professional standards. 42. The powers of the Council are presently under consideration by the National Congress. Several proposals have been submitted to Congress. One proposal presented by the Supreme Court holds that the Council would include only members of the Court and would have the following powers: financial and administadve responsibilities; power to appoint judges below the Superior court level; power to select personnel for all levels of the courts; and training. However, this proposal would defeat the purpose of trying to encourage judges to delegate administraive responsibility to professional administrators, and would simply perpetuate the problems of the curent system of adminison. 43. The second proposal suggests the Council be made up of nine people: thiee members from the Supreme Court and one representative from the Tribunals, the Superior Courts, First Istance Courts (Juzgados), judicial employees, and the bar associations. The 1993 Annual Report of the President of the Supreme Court suggests that the following responsibilities be given to the Judicial Council: 1. Administrating a judicial career system 2. Managing the human resource responsibilities for judges as well as court personnel 3. Conducfing audits of the courts 4. Managing the budget process and supervising the expenditures of funds 5. Managing the disciplinary system for the judiciary 6. Identifying the areas requiring new judgeships 7. Managing enses throughout the system 8. Proposing new laws which will improve the adminion of justice 9. Developing admiistrive regulations to implemet new lawsn6 161nfme Anuml del Presidemt de la Corbe Suprema 1993, pp.4244. - 12 - 44. Regardless of which proposal is adopted, the objective is to improve the overa1l management of the courts. It will be essental that if the Council is given the authority to appoint personnel, high standards should be established as criteria. However, there is no guaantee that establishing the Council will change the way personnel is appointed. 45. The Constitution requires the lower courts to make an annual report to the Supreme Court describing their activities and suggesting improvements to the system. Likewise, the Supreme Court is required to make an annual report to the National Congress. Although these reports could provide clues to the possible changes needed in the judiciary, they are ineffective because there are no resources with which to make the changes. B. Budget 46. According to the Constitution, the judiciary is independent and has its own budget, which is included in the national budget approved by Congress. S nce the Constitution provides for a justice system without charge or fees to the public, an adequate budget is essential (discussed in greater detail under Access to Justice). A recent statute established that 2.5% of the current net income of the central government's budget (for the years 1994- 96) be available for the judiciary.17 Establishing a rule that the judicial budget will be a fixed percentage of the national budget is a method that has been utilized in mnmber of Latin American countries. For example, Costa Rica and Paraguay set aside 6% of the total federal budget for the judiciary and Guatemala allots 4% for the judiciary (see Annex 2). The judiciary needs to have greater financial support to sustain the system (see Annex 3). However in some years the courts did not even use the funds that were allotted to them because they could not manage and detmine the needs. At the same time, some people criticize the court for not requesting sufficient funds for the judiciary in the past. This may be a result of unreliable statistics and insufficient budget preparation. 47. The Ecuadorian judicial sector suffers from a serious lack of resources, and exisig resources are not effectively used because there is virtally no mechanism for planning and evaluation. Financial resources in real terms barely increased over the period from 1970 to 1980. The judicial sector budget increased from 90.3 million Sucres in 1973 at the beginning of the petroleum boom to 4,865.3 million Sucres in 1989. The annual rate of increase in nominal Sucres over this period was approximately 28%. 48. Although the increase in judicial sector spending appears to have been substantial, most of this increase simply reflects the rising rate of inflation during the 1970's and 1980's. If the annual budget for the judicial sector is computed in 1975 Sucres, expenditures increased modestly over the same period (1973-1989) from 121.4 million Sucres to 197.5 million Sucres. In addition, most of the increase in the judicial sector budget occurred during the period from 1973- 1979 when the annual rate of increase was approximately 7.6 per cent. In contrast, from 1979 to 1989 judicial sector spending increased at an annual rate of less than 0.5 per cent. l7However, computation of this 2.5% has become a source of controversy witdin the Mnistry of Finance whch ttends to harge the judiciary with an allocation of the total foreig debt. If the fmds are measurd in this manner, there wil be less funds hn bee the constitutional reform. - 13 - 49. The slow growth in real resources for the judicial sector has occurred in a period of rising demands on the system. From 1982 to 1989, the number of cases entering the lower courts rose from 102,708 to 130,702 for an average annual rate of increase of 3.5 per cent. Over the seven year period real resources per case fell from 1,743 Sucres to 1,511 Sucres.18 While a decline in resources used per case would be an indication of increased efficiency in the judicial system, there is no evidence to support this interpretation. For example, the accumulated backlog of cases between 1982 and 1989 rose from 39,833 to 411,501. Thus, while the system accumulated more cases, it had fewer resources to devote to each case. 50. The 1992 Annual Report prepared by the Supreme Court indicated that the 21,560,109,211 Sucres was insufficient for the operation of the judicial system wherein seventy- four per cent of the funds was used for personnel costs. For 1993, the Supreme Court successfully lobbied for an increase in its budget. Increasing it to 39,929,794,000 Sucres, an increase of 85% (in constant price terms) in one year. The greatest increases were in the area of human resources, especially in salar.es for judges. Salaries constituted 89.8% (35,875 million Sucres) of the budget. 9 51. Though the decentralization of authority has been initiated, the budget and finance office has found that the regional offices are not sufficiently equipped to manage funds. The biggest problem is that personnel are not adeqately trained to handle this responsibility. The need for education programs for court staff and supervising judges has become more apparent through the efforts to change the management stncre. Additionally, decentralization has been impeded by inadequate technology and communication systems. 52. The budget is prepared primarily from the Planming Division's studies of courts' needs and frotm information gathered through extensive visits to the courts. Though there have been significant increases m funds as a result, they have not been sufficient to address the infirastructure needs of the system. For instance, existng court facilities often cannot accommodate all its employees, and the conditions are sometimes barely habitable. In addition, the technology currently available is archaic: there are virually no computers and all the records are handwritten and kept in books. There are no telephones in the First Instance courts in the provinces, resulting in very little commuication between the Superior Courts and the lower courts. For example, in Cuenca there is a commission consisting of three judges from the Superior Court that must travel every two months to talk to the first instance judges. C. Planning 53. The Supreme Court created the Division of Planning in 1990. The Division of Planning has responsibility for statistics, initiating studies related to the intal development of the court 18This is a very rough measure, since the caseload figures are for the First Instance Courts (Juzgados), while the expenditure fgures are for the entire system. There is some evidence that the largest mcrease caload occrred before 1982 although data to confirm this are not available. In addition, all case load figures must be viewed with considerable skepticism. l9lnforme al Congreso Naciond, Corte Suprema de Justicia, pp.22-24 - 14- system, conducting evaluations of how the judicial system operates, and oversees construction projects. This capacity to analyze the court system is essentdal for addressing delay reduction and developing new legal reform proposals. Although the Planning Division only becme operational in 1991, it has made several studies and proposed procedures to regulate such matters as mail flow, supplies, travel, control and maintenance of vehicles, personnel matters and court statistical comparisons, represening positive steps toward building an adequate management strucure. The Planning Division should be in close communication with the Budget Office and should taken budget constrains into account when making recommendations 54. A judicial case statistcs system was established approximately fifteen years ago. Each court is required to submit quartedly reports of case statistcs, inchding the number of new case filings, mumber of cases resolved, and the number of cases pending at the end of each quarter. This report is included in the annual report prepared by the President of the Supreme Court. However, the reports are not always reliable or complete, because the statistics office manually collects and prepares the annual judicial statistics and because there is no computer available. 55. Case files and other documents are being retained indefinitely. File storage areas are inundated, making the research for pertinent records difficult, if not impossible. The manner in which such records are kept consftiutes a safety hazard and are at risk of loss from fires and damage. To respond to this problem, the court system needs a program by which court files can be periodically reviewed and decisions can be made regarding file storage or destruction. 56. The current statistical reporting system is so inadequate that the Director expressed concern about the reliability of the information. There is a need to take samples of the cases in the systm so that a baseline of data can be compiled on the causes of delay. This information will permit policy discussions on ways to address the delay reduction. Preliminary steps have been completed to document the legal procedures for case processing which is a precursor for idenfying causes of delay. The Bank should undertake further work in this area. D. Human Resources 57. A Human Resource Division was created in 1979 to handle personnel matters for all judicial employees. The office is now being reorganized for the first time because of a variety of problems. Until recently, the payment of salaries was a manual operation, there was no system to verify salaries and relate them to approved positions because there was no classifica system, and salary increases were graned without regard to salary compression issues. In addition, there were no employee files kept, no training for personnel, and recruiting and selection of personnel was primarily done by and for friends of judges without any record of their qualifications. The division has found 450 cases of nepotism. 58. Another problem is that the Human Resource Director has no authority to make personnel appointments. Presendy, the Supreme Court judges appoint the personnel of the Supreme Court and the Superior Courts, and the Superior Court judges appoint personnel in the lower courts. However, the Human Resource Director should have authority to hire and fire personnel. This responsibility would also be appropia as p-a of the Judicial Council in the future. - 15 - 59. These issues are now being addressed by the Division of Human Resources. A draft personnel manual was completed in December 1993. Implementing the manual will require more support in the Division and training. No evaluation of employee perfonrance has ever taken place so this year a pilot program is being developed and it is hoped that it will later be used in the entire system. The office has recently established a personnel file for each employee.20 Since there has been no historical practice of keeping any basic information on each employee, it will be a great challenge to manage the fundamental aspects of such a large entity in an efficient manner. 60. The agenda for the Human Resource Division is clear and is supported by the President of the Supreme Court. It will take a number of years to implement fully the contemplated innovations. These innovations are intended to bring more uniformity to the system by reducing the discretion of those who have been accustomed to deciding these matters without restraint. Inplementation will require extensive training of personnel. E. Information Management 61. Access to information management is essential for improving the capacity and administration of the courts. The courts must have an effective method to manage personnel records and case statistics. However, there is a lack of sufficient technology in the courts to support such efforts. Though there has been an effort to install personal computers in the Budget and Finance, Human Resources offices, and with the Administrative Secretary, the number is minimal. Information management is an area of administrative infrastructure that needs to be developed so that the entire system can begin to develop effectively. 62. The Division of Information Management is in need of a comprehensive assessment since there have been no studies documenting the needs and strategies of an information system. Although there is no director of this division yet, a recruitment process is taking place. The low salary for the position has presented significant difficulty in the recruiting process. 63. Access to a database is also a vital step toward improving the capacity of the judicial system. Up to now, this area has had only minimal development. The development of a database for the purpose of providing electronic access to jurisprudence and applicable laws increases the accountability of the entire legal process. By increasing access to this information for the public and legal community, there is a greater likelihood that individual rights can be protected. 64. LEXIS of Ecuador, a private company, has developed a program for docket management which was originally designed for the administrative courts. Unforunately, since the administrative court lost its financial independence, there are no funds to continue the project with LEXIS. Whereas before the LEXIS company was imputing case information into the program, now the court must do it. However, since there was no training for court personnel to use the program and since there is only one computer, the work is not being done. 2OThere are 3,352 professiona employees in the judicimy, and about 5,000 total employees. - 16 - 65. In addition, the codification system is not reliable. Though the Official Bulletin (Registro Oficial) comes out daily, it is not sufficient. There has been some effort to 3tore electronically the laws in a form like the U.S. version of LEXIS. LEXIS of Ecuador has developed a program which includes all the obligatory legislation from 1830 until the present. LEXIS is also working to compile the jurisprudence from 1887 which should be completed by the end of 1994. The work being done by Lexis should be supported. Notwithstanding these efforts, Ecuador may be a good candidate for the World Law Index.21 F. Infrastructure 66. The physical infrastructure of the judicial buildings is in need of review. With the recent increase in the number of judges in the Supreme Court, space is so limited that the problem cannot be resolved within the current building. The Court is looking to acquire a nearby building which could accommodate the court with little renovation. At the Superior Court level, there are approximately three courts that need to be completely renovated. However, the tribunals and First Instance Courts (Juzgados) require more attention. Although these courts have the greatest infrastructure needs, they are also the easiest to remedy. Some of these courts need renovation and others need new buildings. The buildings need to be only one or two floors to accommodate between five and twelve people. In addition, since el Oriente does not have a court at this time, it would be necessary to build a courthouse there. It is essential to have a court in el Oriente in order to provide better access to justice for those living in that area. Improving the physical infrastuctr should be a priority during the reform effort. It is necessary to have adequate infrastructure in order to implement the overall reforms contemplated in this report. G. Judges 1. Quality Of Judges 67. The perception by some lawyers is that the quality of those serving as judges has declined in the past twenty years. The appointment system has experienced political and governmental interventions. In addition, the fact that the salaries of judges have historically been extremely low has made it difficult for the judiciary to attract judges from the ranks of lawyers. 68. New judges that are appointed are not well-prepared for the job on the bench, and experienced judges have little access to training to enhance their skills. For instance, many judges have difficulties undertanding or adequately preparing to handle complex interectual property cases and cases involving economic issues. Parties often do not want these types of cases to go before a judge for fear that the decision will be arbitrary. Therefore, these are some areas of the law in which all judges should be trained. 69. Poorly trained judges within an overburdened legal system are susceptible to corrupt influences and create an environment where the rule of law cannot be guaranteed. In addition, 21An intemational legal information system developed by the United States Library of Congress so that countries may have rapid access to their own legislation as well as that of other counties. - 17 - the use of ex parte communication is one aspect of Ecuadorian law practice which especially contributes to this perception. Since ex-parte communication is permitted, parties may approach judges and judges can request to see the parties or their lawyers separately. There are accusations that cases are decided in these meetings. There are fewer allegations of corruption in the provinces than in urban centers. 2. Appointment Of Judges 70. According to the Constitutional reform of 1992, the National Congress elects tirty-one justices to the Supreme Court, whereas before it had been sixteen justices. The term is six years with the possibility of reelection, though in reality reelection is very rare. Previously, the justices' terms were four years in order to coincide with the President's term of years which allowed the President to have a court of his/her choice and possibly compromising the independence of the Court. 71. The National Congress will elect the justices with a two-thirds vote. New justices have been added in the following way- one-third for a two year term, one-third for a four year term, and one-third for a six year term. These staggered terms will not permit the President of Ecuador to always have a court of choice, as was the case before the 1992 reform, since elections will not always occur upon the President taking office. Although the new six year term may not be ideal for objectivity, it is an improvement over the previous four year term. In fact, many people suggest that the justices on the court now are some of the best in recent memory. 72. Selection of judges at the Supreme Court level, even with the new reforms creates a political system which allows the executive, congress and the judiciary each to appoint one third of the judges. Political parties divide the number of judges that can be appointed, though it is the congressmen that formally submit names of candidates. These reforms may contribute to the politicization of the appointment system, however, there is no evidence that this process compromises the quality of the judges appointed to the bench. 73. Judges other than those on the Supreme Court are appointed by the Courts. The Superior Court and Tribunal judges are appointed by the Supreme Court and the First Instance judges are appointed by the Superior Courts in the corresponding province. First Instance judges must have a minimum of two years of experience and the Superior Court judges need twelve years of prior exprience. Judges elected to the First Instance courts are usually those already working in the judiciary. However, this is not always the case in Superior Courts. In addition, it is difficult to attract the top lawyers to be judges because, as in most Latin American countries, salaries are unattacively low and work conditions are inadequate. 74. Although the Constitution recognizes the notion of judicial careers, the laws that regulate these careers are only followed when convenient. The Supreme Court issued regulations that establish a formal judicial career in 1990.22 These regulations established the National Judicial Career Commission which consists of the President of the Supreme Court, a Supreme Court Justice, a Superior Court Judge, and the President of the National Federation of Judicial 220fflcial Bulletin (Registro Oficial) N. 564, November 16, 1990, Titulo IV, Art. 158. - 18 - Employees. The Commission is expected to establish personnel policies and guidelines, but it has n3t set up or implemented any such guidelines. Ideally, the system should be a merit- based selection. The forms of these competitions based on merit will be determined by the Organic Law of the Judicial Function, now being revised. The merit selection process will help to improve the quality of judges as well as improve the development of women in the judiciary. Given that in the 1980's 40% of the law school graduates were women, it is expected that over the next decade there will be an increase in women in the judicial system.23 75. Under the Constitutional Reform, a Commission presents the judicial candidates to Congress, at which point the political parties decide among themselves who will be chosen as members of the Supreme Court. Some observers see the Commission's review of potential candidates and the publication of their backgrounds as an improvement to the system since it offers more transparency in the process. 76. The terms for judges are in need of review. As discussed earlier Supreme Court Judges are appointed for six years. Supreme Court Judges need longer terms or perhaps a trial period before being appointed to life terms. This is especially necessary so that they may have the ability to make decisions free from outside pressures. Fixed terms of appointment may lead some judges to manage or even continue as advocates in some cases in which they served as attorneys despite a rule making it mandatory for judges to hand over their cases when they become judges. Of course to guard against such potential improprieties, it is essential that there be an effective disciplinary mechanism in place. 3. Removal Of Judges 77. The system by which judges are removed from the bench is not centralized and does not offer the transparency and consistency needed in the process. Presently there are two ways to file complaints about a judge. One is with the Complaint Commission (Comisi6n de Quejas y Reclamos)24 and the other is with a Commission in the Superior Court. Those who wish to file complaints about judges and court employees can use either Commission. Complaints can be filed by lawyers as well as by parties to a case. However, the Commission has no power to remove the judge. The Supreme Court has the final word because it is responsible for the disciplinary system for lower court judges. With regard to Supreme Court Justices, they are removed only by Congress. 78. Once the Complaint Commission (Comisi6n de Quejas y Reclamos) receives a complaint it notifies and instructs the accused to answer the complaint within five days. If there is no response, the Commission automatically recommends removal. The Commission then makes a report accusing or dismissing the claim, or simply ignores the complaint. If the report accuses the person the report is sent to the Supreme Court. The Supreme Court can accept or reject the report. The Supreme Court has the power to suspend the person from his/her responsibilities for a given period of time or remove the person from office. 23Development Associates, p. 47. 24Chapter XII, Article 73 of the Judicial Career Regulation - 19 - 79. In the past few years there has purportedly been an increase in accusations of corruption against judges, however the available statistics do not provide a reliable indication in support of this.25 Though recently it appears that the Supreme Court has taken seriously such accusations.26 Interestingly, there have also been accusations that complainants abuse the system. Several judges indicated that false complaints are filed sometimes because of an unfavorable decision. There is no sanction at the moment for complainants filing false claims and this is something that the court is looking to change. 80. The disciplinary authority was transferred from these Commissions to the Judicial Council in the Constitutional reform of 1992. The Judicial Council will become the only body which would receive complaints about judges at the Superior Court level and below. The plan is that the Council will make a report following an accusation and present it to the Supreme Court which will have the authority to make the final decision. Though the Supreme Court wants to keep the power to make the final decision, it seems that it may be more appropriate to have an independent body decide such matters since there is a natural instinct for judges to protect each other. 81. As important as the disciplinary authorities are the criteria used to evaluate the complaints received. The Organic Law (Ley Organica) includes general norms which are used as the standards to decide whether a judge has violated his/her responsibilities.27 However, the Organic Law (Ley Organica) does not provide formal standards of conduct nor does it provide adequate guidance to a judge. The absence of standards inhibits the development of an administrative infrastructure capable of addressing corruption issues. Since the recent reform did not mandate the adoption of a code of ethics for judges, the development of such a code and its implementation would be a positive step towards combating the widespread perception of corruption. 4. Salaries Of Judges 82. Judges' salaries have been traditionally very low in comparison to other government salaries. However, this past year 1993 the salaries were increased in some cases by 100% in constant price terms.28 This has been an important change in the system and hopefully will begin to alleviate the pressure to accept bribes and to attract higher quality judges (See graph 25Since 1984 there have been 1,770 complaints filed with the Commission, and 40% of these convlaints resulted in sanctions against the accused. However, this number reflects the number of complaints the Commission receives, not only for judges, but also for court personnel. 26Since January 1993 there have been about ten cases reported per week, and as of September 1993 fifteen judges in total were removed from the bench, three from the Superior Courts. 27Ley Organica de La Funci6n Judicial Resoluciones Reglamentos, Feb. 1993. 28Although this year the increases were the saie regardless of the cost of living, next year it is planned that the salaries will be adjusted to reflect the cost of living in the different parts of the country. - 20 - of pay scale Annex 4). Already many judges feel that the increase in salary has boosted morale, but despite some recent improvement, judicial sector salaries at almost every level remain inadequate. H. Recommendations 83. Strengthening the capacity of the courts should be the first priority for Ecuador. The overall management and administrative v ipability should be improved and administrative decentralization should be supported. Specifically, support should be provided in the following areas: strengthening the five administrative divisions in the Supreme Court and establish the administrative positions in the provinces; improving budget management; identifying the sources of delay; revising court procedures and implementing the Council once the functions have been defined; training court personnel and installing information systems to enhance the efficient processing of cases; supporting the efforts of the Lexis Company of Ecuador as well as the possibility of installing the World Law Index; improving the infrastructure of the judiciary; and finally, improving the selection procedures and disciplinary system for First Instance, Tribunal, Administrative 2nd Tax and Superior Court judges; and improving the judicial ethics code. These reforms should improve transparency and accountability of judges which is essential if the public is to have confidence in the judiciary. V. LEGAL EDUCATION A. Law Schools 84. Education in Ecuador is in great need of reform, and legal education is no exception. While the student population continues to increase, the economic crisis has prevented any increase in resources for the academic insdtutions. The problem is of such magnitude that there has never been any national program for reform. 85. Legal education consists of five to six years of instruction at the university level. There are a total of eleven law schools.29 The entrance requirements for each school are different depending upon whether the school is public or private. The public universities have no entrance requirements, but the private universities each have their own enrance cxam. The result is that the private university in Quito has about 600 students in the school while the University Central has 6,000 students.30 Regardless of what school they attend, generally all the students work while they go to school. Very few are full-time students. 29Two in Quito, three in Guayaquil, one in Mana, three in Cuenca, one in Portoviejo, one in Loja. There is one additional school in Quito, Andina, which is solely for post-graduate legal studies. 3OWhile 1,400 students entered their first year the University Central in 1993 it is expected that about 500-600 actuly will fnish on +,me. The rest come back and forth and finish later while still others do not finish at all. - 21- 86. Each school has its own graduation requirements and its own curriculum. Although each school decides its own curriculum, most of the law students are prepared for general practice. However there is one school in Guayaquil, the Universidad Catolica Santiago, in which about 70% of the curriculum concentrates on private law. Most of these graduates find jobs in the private sector as corporate attorneys. The curricula of the other schools generally include the more tradidonal review of the Procedural Codes and Legal Codes. There is very little emphasis put on specialty areas such as intellectual property and trade law. In addition, they use the most traditional method of teaching, that is, the lecture method. As a result, there is little opportunity for the students to gain understanding of the practical application of the law as is done in the case method. However, in their last year at the University Central in Quito students take a course in judicial practice which is designed to expose the students to practical application of the law. Ethics is a required course at many of the law schools, but the course is taught in the religious or moral sense. 87. Each University has its own graduation requirements and its own degree which it confers to the students. There are two degrees- abogado and doctor.31 The student needs about four years to obtain the degree of abogado. This degree is sufficient to practice law and become a judge up to the Superior Court level. In order to receive the degree of doctor, the studwent spends about six years in law school and must write a thesis. The degree of doctor is necessary to become a Supreme Court Justice. Some schools only confer the degree of abogado while others require the degree of doctor to be conferred. The law schools in Quito give the degree of doctor while the law schools in Guayaquil give the degree of abogado. After graduation, the graduate must register his/her degree with the Bar Association. Registration allows the lawyer to begin practicing law. There is presently no examination requirement for lawyers to practice law. 88. The professors of the law schools are generally practicing lawyers. As a result, most are part-time professors. At the University Centml there are a total of 120 professors of whom only 3 are women and only 20 are full-time. The advantage of having part-time professors is that students have the benefit of being taught by those who actually practice law. The disadvantage is that there is little time devoted to research and writing by these professors. However, the budget does not allow for more full-time p-ofessors. The average salary of a professor is 200,000 Sucres (approximately $100) per mont. This is far from adequate. Many professors view teaching as a pro bono service. 89. The school facilities are also inadequate. For instance, the University Central is housed in a building which was built around 1953 for a smaller student body and has never since been expanded or renovated. In 1970 there were 300 sudents and today there are 6,000 students in the law school which creates an obvious problem of space. There are plans to construct a new building and it is estimated that the cost would be about 2 million Sucres, however, there is no source for funding. Additionally the library is not adequate for the needs of the students. Although the students are required to write a thesis for grduation, the library has only 10,000 books, many of which are out-dated. 31 ey Organica de la Funci6n Jurisdiccional, Section 11, Art. 146. - 22 - B. Coptinuing Legal Education 90. Continuing legal education for lawyers and judges does not exist. With new judges coming from private practice and with sometimes limited experience it is es - al to have continuing legal training. Lawyers also need continuing legal education because the laws often change and it is difficult for lawyers to keep abreast of the changes. 91. There is no continuing legal education for judges. However, two years ago a judicial school was established in cooperation with the Supreme Court and the University Central, but it closed about six months after it opened. The teachers were not paid and the judges were not attending the classes. This school was only to be used as preparation for new judges. However, judges also need to be informed of the changes in the law and how to better handle certain cases. Some of the judges in the provinces do not even receive the Official Registry that is published daily with the new changes in the law. In some cases, decisions are made without the knowledge of the new laws and therefore appeals are necessary in order to correct the decision. The judges in the provinces were very keen on having training provided. A judicial school should be reestablished not only to prepare and train judges but also to make them aware of the problems in the system and possible solutions. Making judges aware of the problems will be important for developing pilot courts to improve the internal administrative capacities. Such pilot projects can be effective in building support for national reform. 92. Practicing lawyers also need training as they are practicing in order to be aware of the changes in the laws and learn skills to better serve their clients. Although there is no formal continuing legal education in Ecuador, the bar association does hold some seminars. However, these are not held on a regular basis and attendance is not required. The bar associations should organize seminars on a regular basis. These seminars could be organized to inform and teach lawyers about changes in the law and on specific areas of law. As lawyers specialize in their practice they should be aware of the important changes and how these changes would affect their cases. C. Recommendations 93. Legal education is essential if the legal profession is to be respected and if there are to be competent lawyers as well as judges. It is essential that legal education be improved. Accordingly, law school curriculum should be reviewed as well as the admission and graduation requirements, graduate programs in law should be established, and law libraries in law schools as well as in the courts should be improved. Continuing legal education should be established for both lawyers and judges. A judicial school for judges should be re-established. VI. BAR ASSOCIATION A. Organization 94. Each Province in Ecuador has a bar association. There is also a federation of bar association presidents. The primary role of the bar associations is to maintain a list of lawyers who have officially graduated from law school and to discipline those who have violated the - 23 - ethical standards.32 There are 17,800 lawyers registered in Ecuador.33 It is obligatory for all new law graduates to register with a bar association. In addition to registration, lawyers are required to pay annual dues to the association.34 95. The bar associations have recently begun to be more active in advancing ideas to improve the judicial system. Although the Quito bar is not very active, it appears that the bar associations outside of Quito are more active and often hold seminars. However, the Quito bar association is proposing a project for the defense of the poor, and is requesting funds from Congress to implement the project. In addition, the bar would like to establish a radio program to explain to the people the laws; however, there are no funds for such a program at the moment. These types of activities should be encouraged because in the long run an active bar association which supports the independence of the judicial system will be vital for legal and judicial reform. B. Disciplinary System For Lawyers 96. Each bar association has a disciplinary system which includes a Tribunal de Honor. This Tribunal consists of three persons with at least ten years of experience and who do not work in the judiciary. These persons are elected by the bar members. In Quito the Tribunal receives about 120 complaints per year.35 There are no statistics to show how many cases result hi sanctions.36 The main problem is that the ethical standards used to review complaints are inadequate. 97. The Tribunal applies the ethical standards included in the Law of the National Federation of Lawyers which do not provide effective guidance to lawyers on how to govern their conduct.37 For instance, Article 32 states that a lawyer must contibute to the overall legal profession through conduct that is in accordance with the rules of professional ethics. This is a ve-y general statement and there is no further elaboration on that point. More specific standards are included under Article 28, though even these are not entirely clear. The Trbunal de Honor may sanction a lawyer under Article 28 for: faults committed in the handling of matters entrusted to the lawyer; negligence in carrying out the obligations as a lawyer in the judicial proceedings; disregarding the laws that concern a lawyer; illegal practice of the 32The ethical standards to be observed by lawyers are contained in the Ley de Pederacifn de Abogados, Capitulo I, Art. 23. 331n Quito there are 3,871 lawyers registerd and in Cuenca there about 2,000. 34However, in Quito only 500 lawyers pay their anmual dues every year. 35Por example, this year there have been already 20 cases of persons misrepresenting themselves to be lawyers. There are also instances where lawyers are paid to sign pleadings in cases where nonlawyers are representing the clients. 36However, it is known that nc lawyer in the Guayas bar has been suspended from practice since 1981. 37Ley de Federaci6n de Abogados, Capitulo II, Art. 23. - 24 - profession; violation of the attorney-client privilege; defamation of a lawyer affiliated with the bar association; and violation of any norm of the ethical code of the bar. 98. Under Article 25, if the Tribunal finds a lawyer to have violated any part of the ethical code, it may take the following actions: issue a written warning; impose a fine ranging from 100 to 2,000 Sucres (approximately $0.05- $1.00) according to the seriousness of the violation; issue a reprimand for unprofessional conduct; temporarily suspend the privileges and rights associated with being a member of the bar; and suspend the attorney from practice for three months. These sanctions do not adequately deter unethical behavior nor can they be used to adequately enforce the ethical code. 99. The Organic Law also includes general prohibitions for lawyers under Title III, Section II, Article 151 which says that a lawyer: must not reveal an attorney-client privilege including documents or instructions; must not cease representation without just reason; must provide zealous representation to the client; must not defend an opposing party after representing another client; must not authorize by signature pleadings made by another person; must not be counsel for a case that he/she was or will be the judge and must not intervene in the proceedings in a manner that triggers recusai by the judge, except as set forth in the final paragraph of the prior Article. Stronger sanctions as well as better definitions of what constitutes unethical behavior are needed. Defining acceptable conduct and enforcing an ethics code is an imnortant means of establishing confidence and trust in the judicial system. C. Recommendations l00. Support is needed to improve the role of the bar association: The bar should administrate continuing legal education programs for lawyers. Support should also be provided to establish programs for the defense of the poor and education for the public. An active bar association is important to keep lawyers accountable and provide their services to the public. The bar should review admission requirements, standards of professional conduct, and lawyer discipline procedures. The legal profession should remain largely self-governing under court supervision because self-regulation helps to maintain the legal profession's independence and is an important force in preserving government under law and challenging abuse of authority. VII. ACCESS TO JUSTICE 101. The courts must be accessible to those who need to use the court for a legitimate purpose. Accessibility can be measured by time, money, and the procedures that must be followed. Though there are no official court costs in Ecuador (which theoretically allows everyone, regardless of their economic means, to file a case), in practice arbitrary unofficial fees may reduce accessibility to justice. In addition, even though there are no official court costs, parties still are required to be represented by a lawyer which can be very costly. The law will not permit self-representation (pro se) regardless of whether a party is too poor to hire an attorney. This effectively is a denial of access by reason of economic status. In some cases, such as divorce, the use of the courts is unavoidable, but if one cannot afford a lawyer that person is effectively prevented from filing a case. Accessibility aiso means that people must have physical access to the courts. For instance, courthouses should be equipped for - 25 - handicapped persons. Also, translators should be provided for those people who do not speak the official language, which can be the case with an indigenous population. The judiciary must provide reasonable, fair and affordable service. A. Legal Aid 102. One way to provide better access to justice is through a system of legal aid. Presently, there is no organized system of legal aid in Ecuador. What is available is very limited and does not offer assurance of competent counsel. The law faculties of law schools do sponsor groups of students which provide defense counsel for those people who are accused of a crime and are being held in the prison system. However, since these volunteers are students with little or no practical experience, the representation that is provided is far from adequate. Nonetheless, while law schools cannot, and should not, be major providers of services to low income clients, they could provide clinical programs for training and experience in poverty law issues, and research centers could be developed in schools which would contribute to the improvement in the delivery of legal services to the poor. 103. There are a few other groups that provide free legal services to the public. One is called Fundaci6n de Fabian Ponce which is financed and operated by the lawyers in the Fabian Ponce Law Firm. This organization has been in operation for about five years and currently has about 200 cases.38 The primary emphasis of the cases handled by the foundation involves family law issues. The courts are aware of the foundation and when there are no other means of representation for people, a court may suggest the foundation as an avenue for representation. 104. Evidently, there is no culture of legal aid in the legal community. The judicial system should support a legal aid service for those who cannot afford to hire a lawyer. Since under the law each person must be represented by a lawyer in order to use the judicial system, there must be alternatives for indigents. The extreme disparities in income all too frequently ensure that those who seek to resolve their problems inside the courts find that wealth and power, not justice, decide their case. B. Public Defenders 105. The Constitution under Article 107 provides public defenders for defendants who lack the economic means to hire an attorney on their own. The main problem is that there are only twenty-one public defenders in all of Ecuador.39 There are four public defenders in both Quito and Guayaquil where there are over two million and three million people, respectively. Even if a defendant knows of his/her right to a public defender, one may not be available. In fact, there is a long waiting list for those requesting assistance of a public defender. This situation creates great hardship on those who cannot afford an attorney and cannot obtain a public defender. 38There is one full-time lawyer and three part-time law students working in the office. 39There are four public defenders in Quito, four in Guayaquil, and one in Azuay, Bolivar, Canar, Carchi, Chimborazo, Cotopaxi, El Oro, Esmeraldas, Imbabura, Loja, Los Rios, Manabi, and Tungurhua. - 26 - 106. These lawyers are expected to provide free legal services to indigents in criminal, civil, commercial, labor, traffic, and landlord/tenant cases. As a result, the public defenders have an enormous caseload and it is unrealistic to expect that they could handle all the defense cases of people who cannot afford a lawyer. 107. The fact that there are so few public defenders delays justice. Relying upon a public defender inevitably delays the case due to the public defender's overburdened caseload. This in effect denies people access to justice. The number of public defenders is inadequate, and must be increased to provide even a minimal standard of competent legal service to the public. 108. In addition to increasing the number of public defenders, there is a need for regulations to provide guidance as to what cases the public defenders should or should not handle. The current situation has put a tremendous burden on these very few lawyers. The Quito public defenders report that they spend about 80% of their time on criminal matters, except drug cases, of which there are too many to handle. Though it would be ideal to have p-tblic defenders for all types of cases, this may be unrealistic. It is essential to have public defenders for criminal cases, but it may be necessary to review whether public defenders should take other cases as well. If a legal aid service was established, this could help alleviate the caseload of public defenders in cases other than criminal. In addition, there is a need to establish standards to determine whether a defendaAt is entitled to a public defender. This would require setting economic criteria for defendants who can use the service. C. Court Costs 109. The Constitution provides for a free justice system. This means that there are no official charges of any kind for using the system. In this way, justice is theoretically accessible to everyone, but it also contributes in part to the problem of low pay, inefficiency, and poor quality and access to justice in Ecuador. For example, the reality of the system is that it creates incentives for court employees and judges to charge unauthorized fees to parties. In order to advance one's case, a party may consider or be asked to pay such a fee. This transaction fee does not inure to the benefit of the judicial system, offsetting the legitimate costs of sustaining a judicial system, but rather simply goes to the personal benefit of a judge or court official and contributes to corruption in th: system and effectively denies access to justice. l10. The administration of justice is a valued service for which people are willing to pay. Since there are no formal fees, individuals are tempted to expropriate the value on their own and for their own benefit. This leads to less transparency and inefficiency. Corruption leads to favoritism because the quality of service depends on the price one is willing to pay. 111. If there was a nominal cost to using the system, people would ltss likely be willing to pay twice for the same service-- an official fee plus a bribe. The system would benefit as a whole while charging a uniform filing fee. The amount could be structured according to the amount of the claim, and for those who earn less than X number of dollars per year the fee could be waived pending the outcome of the case. This could be a fixed percentage of the claim or a progressive fee structure. Appeal bonds and fees may also help to reduce the number of - 27 - appeals that are filed in the system. However, all fees should be waived if the person cannot afford it so as not deny access to justice. D. Recommendations 112. It is essential that Ecuador establish legal services that make the system as accessible as the Constitution intends. The justice system is for the entire population and there should not be additional barriers for the poor in order to use the system. Accordingly, the system of public defenders should be rvrvised and the number of public defenders should be increased so that they may satisfy their mandate. In addition, legal aid should be established throughout the country. Official court fees should be established as well as a system of waivers. VIII. ALTERNATIVE DISPUTE RESOLUTION (ADR) MECHANISMS AND SMALL CLAIMS COURTS 113. Alternative dispute resolution mechanisms (ADR) are available in the Ecuadorian judicial system as well as outside the judicial system. However, ADR is litmited and is not widely used by the public, but where it is available, the participants appear to be content with the results. At tbw moment arbitration, mediation and conciliation are available in the judicial system under the Civil Procedural Code, and outside the judicial system in the Chamber of Commerce,AA and in the Ministry of Labor. Such ADR methods should be expanded and introduced more extensively into the system. ADR mechanisms are probably the single greatest innovation needed in Ecuador because they can provide prompt and fair resolutions of disputes. However, such innovations must be supported by an effective and efficient judiciary. A. Use Of ADR In The Chamber Of Commerce 114. Arbitration is available under the law of the Chamber of Commerce for specific cases that involve contract and commercial issues.41 The law of the Chamber of Commerce appears to be used more frequently than that in the Civil Procedural Law. However, both are in need of revision so that they may offer effective resolution of disputes. 115. The arbitration law under the Chamber of Commerce was established in 1973 to provide a voluntary system for parties to settle disputes. In addition to the law, the Commercial Law #18 regulates the application of the law. There are two Chambers of Commerce in Ecuador: one in Quito and one in Guayaquil. Both Chambers implement the arbitration law, however, Guayaquil has an additional regulation which Quito has not adopted. 116. The additional regulation in Guayaquil provides for three arbiters on every panel, and one of the arbiters is the chairperson who has the power to make the final decision if the other 40Although mediation is available in the Chamber of Commerce there have only been about sLx cases in Quito and there was not much information availble on the success of the system. 41Decreto Supremo N. 735. - 28 - two do not agree. If there is a split decision, the chairperson's vote decides the case. The veto power allows decisions lo be made in a more efficient manner. Some lawyers indicate this additional regulation is what makes the Guayaquil system work better. In Quito, the system is slightly different. Although there are three arbiters as in Guayaquil, decisions are made by majority. 117. There are about three to four cases submitted for arbitration every year in Quito. However, in the past twenty years only two cases have ever resulted in a decision by the arbiters. The other cases have ended in settlement. During arbitration the parties provide and exchange evidence about the facts at issue. This system of producing evidence helps the parties to realize the strengths and weaknesses of their case. As a result, many of the parties are more willing to discuss a settlement than to wait for the arbitration panel to decide the case. The system provides the forum for parties to negotiate and settle. The fact that only two cases have resulted in a decision is indicative of the success of this technique since the point is to resolve the case without resorting to the judicial system. The arbitration process usually takes less time than a normal civil or commercial case in the courts.42 118. Arbitration decisions are enforced in the court system. Even though the parties have made the effort to resolve their disputes outside the judiciary they still may be forced into the slow court system for enforcement. If one party does not comply with an arbitration decision, the other party may go to court to execute and enforce the decision. This can cause great delay in the enforcement process and defeat the purpose of using arbitration in the first place. 119. In order for the system of arbitration to be more efficient and effective, the arbitration law would need some revision. Under the current system the arbiters are chosen by lottery from a list provided by the Chamber of Commerce. Every January 20-30 arbiters are appointed for the year. These arbiters are from different professions, but they are all members of the Chamber of Commerce. It is suggested that this system be revised so that each party chooses one arbiter and then both parties agree on the third, who would be the chairperson. Although this may take more time because the parties must agree on the third arbiter, it may assure that the parties will be more likely to support the panel's decisions. 120. The arbiters do not earn any fees for their service on an arbitration panel. This is a pro bono service. As a result, all the arbiters have other full-time jobs which does not leave them with much time to devote to the arbitration proceedings. It may be advisable to require the parties to pay a nominal fee to the arbiters so that there is a sense of commitment both by the parties and by the arbiters. It may also be useful to have redred persons on the list so that the arbiter, have more time to devote to the proceedings. This may also help to alleviate another problem which is that the arbitration law does not permit the use of alternate arbiters in the event that one is unable. This delays the process and the possibility of a quick decision. Once the panel is chosen and the case begins it is more important to keep the process moving than to have the same arbiters during the entire proceedings. Having an alternate would probably be less of an issue if the arbiters were paid a fee for their services. 42Though there is one pending arbitration case that is now in its second year. - 29 - 121. In addition, the law does not provide for a time limit by which the arbitration panel must make a decision. Since it is pro bono, the panel does not feel compelled to decide a case quickly. It would be important to stipulate a time limit within which a decision must be made after all the evidence has been produced. Penalties would also be needed in order to discourage late decisions. There is also a need to establish time limits for answers to be filed. For instance, when the plaintiff files a complaint it can take up to one year for a defendant to reply. This unnecessarily delays the process. The law should be revised to require the defendant to reply within a fixed number of days with penalties for those who do not reply within the time limit. 122. The ADR proceedings under the Chamber of Commerce have another problem. There is a bias in the arbitration proceedings towards members of the Chamber of Commerce. There is always one party who is a member of the Chamber of Commerce, however, when the other party is not a member, that party usually is at a disadvantage from the start. Since the arbiters are all members and one of the parties is also a member there is usually discrimination against the "outsider." It would be advisable to include arbiters on the roster who are not members of the Chamber of Commerce so that there is a fair and independent decision-making process. 123. Finally, the decisions of the arbitration panel should be final subject to review only under the terms provided by the New York Convention of 1958 which Ecuador has ratified. Once the parties agree to use the system, the parties should be bound by the decisions made by the arbitration panel. Otherwise arbitration may be used as dilatory tactic and prolong a final decision. The ability to file an appeal from an arbitration decision in the courts may cause the process to take much longer than if the case had entered the system from the beginning. 124. Changes should be made in the arbitration law to enhance the efficiency of the process. However, such changes would need the approval of Congress, but this may be easier than passing a new Civil Procedure Code where arbitration is also used. Arbitration is an important service provided to the private sector. If the law is revised and improved, perhaps the private sector would use the system more often and avoid the problems in the judiciary. Such a system should be promoted because the private sector is in desperate need of alternatives to the inefficient and ineffectiveness of the judicial process. 125. Presently, lawyers representing international and domestic companies recommend and sometimes insist that arbitration clauses be included in their business contracts, as well as a commitment to make a good faith effort to settle the dispute before resorting to the judicial process. Domestic contracts may include dispute resolution clauses stating that first, the parties will discuss second, they will mediate and third, if mediation fails they agree to arbitrate the issue. International contracts may include an arbitration clause that stipulates that arbitration proceedings will be according to the rules of the International Chamber of Commerce. An effective ADR system is essential to assist the parties in honoring these types of clauses. Perhaps a separate independent body could be established for arbitration that could handle commercial, contract and other types of cases as well. This would require a larger roster of arbiters and a great deal of training. - 30 - B. Use Of ADR In The Code Of Civil Procedure 126. Under the Code of Civil Procedure parties can resort to arbitration or mediation. However, this system is not used very often and some lawyers say that it is ineffective. The process includes three arbiters on a panel and one has the deciding vote, as in the case of the Guayaquil Chamber of Commerce. The decisions are binding and cannot be appealed to the courts. The exception is that if one of the parties is a government entity, it must appeal the case to the courts.43 Some lawyers indicated that the government prefers the courts since rarely does a court decide against the government. 127. This double standard does not make for a fair system.44 The rules of the game should be the same for all parties. For instance, if arbitration decisions are to be binding they should be binding on everyone. Since both parties must agree to use arbitration, it is logical to assume that the parties agree to abide by the decisions made by the arbitration panel. 128. Mediation is also permitted undier the Code of Civil Procedure. This is used more often m the Provinces where judges often encourage the parties to use mediation. How.vever, the mediators are the judges themselves. The advantage is that the parties find out in the process how the judge will decide the case if it comes before him or her and this rmay encourage the parties to settle. Regardless, there should be third party mediators and arbiters who have not had previous contact with the case and who have been extensively trained. 129. Conciliation may be used in any civil case. A judge may recommend a conciliation hearing in civil cases, but the judges cannot make it obligatory. The parties may also decide for themselves that they want to use conciliation, and if an agreement is reached, it is presented to the judge for approval. This agreement can be enforced by the court. C. Use Of ADR In The Ministry Of Labor 130. The Ministry of Labor provides for mediation, conciliation and arbitration in labor disputes. The Labor Law requires that collective labor disputes be submitted to the Ministry of Labor.45 First, the case is submitted for mediation, but if no agreement can be reached the case is submitted to the Conciliation and Arbitration Tribunal (Tribunal de Conciliaci6n y Arbitraje) which has five members on the panel: two chosen by the employee, two chosen by the employer and the inspector or sub-inspector of the Ministry who presides. In addition, there are substitutes for each member of the panel. The Tribunal first attempts to have the parties reach agreement by conciliation, however, if this is not successful, the Tribunal rules on the case. The decision by the panel can be appealed to the Conciliation and Arbitration Superior 43The courts have been known to take up to four yeats to decide such appeals. 441n addition, the Constitution specifies that arbitration clauses in the State's contracts with a foreign party are unenforceable if signed in Ecuador. Foreign companies can avoid this problem by signing the contract outside of Ecuador, but domestic companies do not have this option in practice. This restricts the writing of contraus with domestic companies. 45Labor Law, Article 465 (1.15 Part C-El Conflicto Colectivo) - 31 - Tribunal (Tribunal Superior de Conciliation y Arbitraje) in the Ministry of Labor. The five members of that Tribunal make a decision which is binding and cannot be appealed. Many lawyers feel that this system works efficiently because the cases take about six months to be decided. 131. Disputes that involve a single employee may be submitted to the Ministry of Labor, but it is strictly voluntary. The employee presents the contract to the Labor Contract Tribunal (Tribunal del Contrato), and a decision is made which is binding and cannot be appealed. Alternatively, the individuals may file the case directly in the court system. D. Smali Claims Courts 132. It may be advantageous to establish small claims court in the urban areas in order to help alleviate delays. This specialized court should be for those cases up to a specified dollar amount. In addition, no party should be permitted to be represented by a lawyer in these types of proceedings so that no one has an unfair advantage. It is noteworthy that some cases are never filed because one must have a lawyer. This will help to create a level playing field for the parties and permit access to the courts where they would otherwise be prevented for lack of economic resources. 133. In addition, there should be simple forms to initiate a case. If the parties cannot read or write then the clerk should be instructed to fill out the forms for the people. The written forms that are required should be kept to a minimum, and the rest of the proceedings should be oral so that the parties can explain the situation in a colloquial manner to the judge. This type of court system could allow the "neighbor disputes" to be resolved in an efficient and least costly maner. This may also help to free up the other courts for the more serious and complicated cases. E. Recommendations 134. With regard to AW-I, the arbitration law should be revised and its use in the Chamber of Commerce should be expanded. Alternative dispute resolution mechanisms under the Civil Procedure Code should be expanded, mediation centers should be established, mediators and arbiters should be trained, and consideration should be given whether ADR under the Civil Procedure Code should be mandatory for certain cases (for example, in certain types of domestic cases). ADR should be developed in such a way as to provide parties a speedy, informal, and confidential way to settle disputes. Small claims courts should be established. Small claims courts should provide improved access to justice for those people pursuing small claims as well as assist in alleviating the caseload in other courts. IX. LEGAL REFORMS A. Civil Procedure Reform 135. The Code of Civil Procedure is archaic and in need of review and revision. The procedures are broadly written and allow for differences to emerge in the day-to-day operation - 32 - and interpretation of the procedures. Each judge interprets these set of procedures differently and this has created differences in the way individual courts operate. There was a codification five years ago, but there were not any serious revisions. The Procedures do not provide for efficient case processing. According to the Constitution, the procedural law is supposed to provide for simple, uniform, and efficient proceedings. 136. In addition, there is a commitment to adopt the oral system wherever possible. However, the Code of Civil Procedure relies entirely on the written process. The Code provides that all cases will be processed in the same manner. It may be useful, however to allow for more flexibility in methods of processing different types of civil cases. Penal cases, on the other hand, use some oral procedure, but the procedure is not as efficient as one might expect. It would be advisable to determine how the oral procedure in the penal system could be improved and whether such a system would be appropriate for other types of cases. 137. A revised Code should i7 elude a series of procedural mechanisms to facilitate the resolution of cases such as mediation, arbitration and conciliation. The fundamental premise of such a revised Code is that it is the role of the judge to be in charge of the civil process. The judge, through the secretary's office, would maintain control over the pace of litigation. To achieve this level of control the court must have the internal capacity to maintain good records and good communicadon with lawyers. In addition, the judges must be willing to perform this role. However, these conditions are not present in the Ecuadorian civil justice system. Judges do not have the power to move cases or require lawyers to attend any meetings or file any pleadings. As a result, the reform of the Code of Civil Procedure will require a series of reforms within the administrative structure as well as providing judges with the power to control the pace of litigation. 138. Reform of the Civil Procedure Code is also needed to implement the recent constitutional reforms and introduce new changes that will modernize the procedure and assure the guarantee of constitutional rights. Part of the modernization should include omitting certain proceedings that in practice unnecessarily delay and complicate the procedure and add to the already tremendous backlog. Some lawyers indicate that the ordinary trial should be abolished, and instead simply use existing verbal summary trial.46 A more specific clause should also be included prohibiting parties from obstrucdng justice and being an obstacle to the resolution of a case. Finally, terms need to be revised and enforced so that the parties and judges meet the time limitations for every stage of the case. B. Criminal Procedure Reform 139. The Ecuadorian Criminal Procedural Code was the subject of a study by United Nations Affiliated Latin American Institute for the Prevention of Crime and Treatment of the Offender (ILANUD) during 1990-2. This study led to drafting of a new Code which expanded the oral process and removed the investigative role from judges. Prosecutors would assume the role of investigating crime and presenting the case to the judges. Presently, the First Instance Courts (Juzgados) investigate the case and decide whether a crime has been committed. If a crime is 46However, to only use a verbal summary trial may be appropriate in small claims courts. - 33 - found, the case goes to the Tribunal for a public trial, except in cases of rape. If the oral procedure is introduced then perhaps this two step process will not be needed. The investigative responsibility will be given to a prosecutor rather than a First Instance Court (Juzgado), thereby freeing the First Instance Court (Juzgado) to concentrate on the disposition of the case. 140. The use of the oral procedure is intended to accelerate the processing of cases and create more accountability. A number of cointries including Argentina, Bolivia, Costa Rica, El Salvador, Guatemala, and Peru are moving away from the inquisitorial system.47 With the use of oral hearings, there is a need to preserve the record. Presently tape recorders are used during the hearing and are transcribed at a later date. Court stenographers could be more efficient and training for this would not be difficult. 141. The interest in these reforms is also a result of concerns in reducing prolonged prison detention. It is estimated that 20% of those detained in prisons are awaiting a formal judgement by the court. A very large percentage will remain in prison longer than the later-imposed sentence for the crime. This situation contributes to the loss of confidence by the public in the impartiality and fairness of the legal system. Since the criminal law affects the general population directly, it has a profound effect on the public's perception of the entire system. C. Gender Issues 142. There are several gender issues that should be addressed when discussing any reforms to the Codes. Although some of the laws are not gender-specific, the application of the law may be in some ways discriminatory. In addition, in some cases the law does not protect certain rights. For example, although the law technically stipulates that either spouse may receive custody of the children in a divorce, almost always the judge awards custody to the mother based upon an assumption of fitness. This is a discriminatory application of an apparently gender- neutral law. 143. Another example of potentially discriminating application of the law is that while the law stipulates that a spouse may divorce for grave injury, judges do not accept domestic violence as a grave injury unless it involves a weapon. One's fear of another's physical being or strength is not a consideration. In order for a woman to obtain a divorce in this case she must find an "accepted' reason for divorce, which in turn may contribute to corruptive behavior. For example, a woman may perjure herself in order to obtain a divorce for an "accepted" reason, and her lawyer may consequently be caused to perjure him or herself as an advocate. 144. Another example of the discriminatory effect of an otherwise supposedly gender-neutral law can be found in the law that holds that immediate family members cannot file criminal complaints against one another. Consequently, there is no way in which a woman or child can bring a criminal action against a husband or father in abuse cases. To get around the discriminating effect of the law, a relative may be persuaded to bring a case against the spouse. 47A number of other countries are contemplafing similar reforms including Nicaragua, Panama and Paraguay. - 34 - 145. A final example of inequity in application of the law is that there is no provision of any kind for spousal support following divorce. Altfrugh a woman may receive a part of the marital property she has no right to monthly support. Additionally, though children of divorce have a right to financial support, fathers/ ex-husbands may pay only about $5-10 a month per child.48 Since in the majority of cases the woman has custody of the children, this creates an undue hardship on the woman who must therefore provide not only for herself but also for the children, essentially unassisted. The absence of any support provision in the law contributes to the poverty of women and children and minimizes their ability to attain the same standard of living prior to the divorce. D. Administrative Procedure 146. One of the greatest weaknesses of the legal system in Ecuador is the multitude of rules which govern the activities, organization, and procedure of public administration in Ecuador, and which deal with all entities from the executive branch to autonomous and decentralized agencies. 147. There are fourteen administrative agencies and each agency has its own administrative procedures dealing with records, orders and proceedings. Currently, administrative and legal processes vary according to the laws of each agency. These processes accord the governL ant officials a great deal of discretion. The private sector uses such procedures to secure permission or authorization to conduct business for exploitation of resources, mining, water, electricity and telecommunications. 148. The number of administrative procedures is so great that only a few lawyers specialized in public law are able to guide themselves with any certainty in the system. When a citizen deals with a public administration agency, his or her rights are not clear and the process is not either. This situation is caused by arbitrariness within the administration since even the agency is often ignorant of the rules that govern its own activities. The result is that a citizen cannot find protection due to the entangled and obscure nature of the adminisative procedures and due to the complicated organic structure of the public administration. 149. The public administration's internal organization has a distinctive charcteristic, and that is the total lack or absence of a system. Each agency within the administradon has a different organization, even though agencies may be of identical nature with another. The lack of systematic organizatonal judgement is even more apparent in the establishment, formation and functions of the multi-personnel agencies. For instance, the definition of policies and management for some agencies may be considered only by public officials, whereas in other agencies, representatives from the private sector may be included as well. Some agencies have coordinating responsibilities while others have decision-making capacity. Most of the agencies have national jurisdiction while others have only regional jursiction. 481n Costa Rica and Argentina since there are no norms for support payments, the judges have discretion to determine the amount to be paid by the noncutodia parent. The result is that judges usually award an amount that is inappropriate for the needs of the children. - 35 - 150. The presence of the collective agencies in the administrative organization is by nature inefficient. For example, the recently created Ministry of Housing and Ministry of Tourism have created even more confusion. The activities of these ministries overlap with some of the activities of the decentralized admiistrative agencies such as the National Board of Home Constuction, the Ecuadorian Institute of Sanitary Works, and the Ecuadorian Corporation of Tourism. This legislative overlap of activities has created an obstacle for efficiency. The tendency is to establish, through law, the iternal organization and jurisdiction of the different agencies so as to reduce the flexibility of any alternative notions of organization. The existence, organization and functions of these agencies need serious reform. 151. As the importance of areas subject to the jurisdiction of the agencies increases, the concentration of authority over these areas likewise increases exponentially, creating a pyramid effect. Even with the creation of section departments, the situafion has not changed. It is naturlly expected that the principal authority should issue the most important decisions, but there is no mechanism in place to initially determine the nature and importance of the cases awaiting decision by the agency. 152. Some agencies of the execudve branch carry out judicial functions. It has been suggested by some lawyers that in order to avoid prejudicial procedure that will prolong a decision, the judicial functions presently within the executive branch should be transferred to the Judicial Branch. 153. A new law should attempt to differentiate law from organic regulations. The law should include the rights and obligations of the citizens, with general references to the agencies as a whole. In this way, the law will apply to whatever agency has jurisdiction over the subject without namming it specifically. On the other hand, the organic regulations would deal with the administrative stucture separately. The administrive law would establish the type of agency, its general functions, the criteria for organization, the cidzens' guarantees, rights, and obligations in each type of action and the reqired conduct and prces. 154. In addition, the basic administative legislation should consider sandared mechanms to assure the following specific objectives: a. avoid the concentration of powers or attributes of different tpes in the same entity, except in the case of hierarchically highest entities; b. d tralized mechanis in exectitve decisions, particularly in matters of adjudications, authorizations and permissions, approvals and licenses, application of sanctions, determination and collection of taes. The functions should be assigned to local authorities; c. encourage and assure citizen and private sector participation for the identification of local necessities and control of the execution; d. estabish different types of multipurpose agencies that will participate in the private sector, identify and advise in policy definitions; e. include rules for admin_isatve procedure, from filing the complaint to the disposition of each type of action. The appeal procedure would be more specific because in some cases it must transfer the action to a different place from where the complaint was filed; - 36- f. structure the appeals in such a way so that appeals to the highest authority do not become the general rule, especially if such appeals involve transferring administrative disputes to a different place from that in which the appealed resolution originated. 155. The principal reform suggested by business and corporate lawyers is the need to establish a uniform set of administrative procedures. These procedures would provide uniformity for the government to conduct its affairs. To address this situation, there has been a new effort to reform the legal system that governs public administration work.49 The goal is to have an Administrative Procedures Act which is standardized for all the public administrative agencies. This proposed law is not merely an adaptation of similar laws of other countries (which is the usual method in Ecuador), but instead is born from a diagnosis of the current situation and attempts to simplify and clarify procedures in order to obtain efficiency and establish a consistent rule of law in administrative activity. E. Organic Law Of The Judiciary 156. The constitutional reform 4f December 1992 made drastic changes to the judiciary. Accordingly, it will be necessary to reform the supporting secondary legislation. There has ahready been a preliminary project to reform the Organic Law of the Judiciary which implements some of the constitutional reforms and introduces other laws which tend to resolve some of the judicial administraton problems. The proposed law recognizes additional functions of judges in the process laid out in the Civil Procedure Code, establishes a new system for the removal of judges, establishes the new functions of the Supreme Court, reduces the administrative functions and duties imposed upon the President of the Supreme Court, separates the judicial career between judges and administrative personnel, determines the jurisdiction of the recently created administrative and tax courts, standardizes the functions and duties of secretaries of the courts, establishes substitute judges at the First Instance level with complete authority even to impose sentencing in order to alleviate the backlog of cases, allows for substitute judges at all levels where there is a determined number of backlog cases50, establishes a new charter for the other persons working in the judiciary (i.e. public defenders etc.), and establishes new ethical standards and procedures for lawyers. These are just some of the changes intrduced in the law which is scheduled to be presented for discussion and approval at the National Congress in June 1994. The problem with the proposed law is that the group working on the law does not have the support or input from the Supreme Court.51 Not surprisingly, in Jamuary of 1994, the Supreme Court appointed a Commission to draft its own version of the organic law. 49Corporaci6n Latinoamerica Pam el Desrollo (CL)) is working to develop a new uniform administrative procedure law. SOThe idea of substute judges is welcomed, however, the proposed law permits substitute judges to be used only for a limited period of time (two years). This presumes that the backlog will be dealt with within this time frame. However, bacldog may occur again and again and substitute judges should be an available remedy whenever the problem occurs. SiCorporacion Latinoamerica Pama el Desarrollo (CLD) is the main coordinator of this effort. - 37 - F. Recommendations 157. The Procedural Codes should be evised in such a way as to facilitate efficient and fair processing of cases. Uniform Administrative Procedures should be created for processing administative cases. Efforts to revise the Organic Law should be halted until after there is consensus as to what changes are needed in the court procedures and administration. If oral proceedings are to be expanded, it will be necessary to train judges and lawyers in oral advocacy. In addition, the Civil and Commercial Codes should be reviewed to determine what revisions if any are necessary. Under such a Civil Code review, gender issues should be taken into account especially concernig domestic relations issues. Laws should be gender neutral and should not perpetuate the poverty of women and childr-en. X. CONCLUSION 158. The areas for reform are numerous, but quite clear. Many of them have been identified in this paper and can be expanded upon. Overall, there is enough information to clarify the problems and the needs for reform for the judicial sector. The process of reform has already begun with the recent constitutional reforms. This process has been initiated by Ecuador itself. There has been very litde involvement in the judicial sector by international donors. ILANUD financed the drafting of a new Criminal Procedure Code which was discussed earlier in Paragraph 15 and a new Criminal Code which was never presented to Congress. The United States Agency for Internatonal Development (USAIID) is financing a working group with members from the Goverment, the judiciary and t private sector to develop an action plan for reforming the adm tion of justice.2 USAID is also financing a nongol oWnization, Latin American Development Corporation (Corporaci6n Latinoamericana Par el Desarrolio, CLD), to build judicial reform constitency, educate the public on reform, and support the working group established. USAID has limited funds to make any significant contibution to the overall reform effort.53 In addition, USA1D has historicaly concentrated on criminal reform in Latin America. 159. However, overall reform is necessary. The President of the Supreme Court is committed to reform and the private sector executives working on administration are developing the capacity so that additional reforms can be implemented. Accordingly, the climate for reform is right. Building consensus will be important for implementation. Pilot projects may be very useful in proving that these new ideas can work Li the system. Efforts should begin in reforming the admintaton of the courts as well as revising the Procedural Codes and Organic Law, creatinZ uniform Administrtive Procedures, improving the selection and removal procedures for judges, the legal education system, the role of the bar association and disciplinay system for lawyers, establishing continuing legal education, creating legal aid services, revising the system of public defenders, exanding the use of ADR, and establishing small claims courts. 521t is expected that the aceon plan wiln be completed by June 1994. 53Te amount alioted for fi year is $1 Million. Refom Arem Pdioit I Priorty U Priorty D Priority IV cour procedre and budget courts; spport effort of LEIMS lde1 kntify Join the World, Law Imlex- Co -mmil - x Poeda Cod reviw and revise Procedural Codes; oeXp and revis obibato fdia_ofn and concilation under the civil Procedure Code; cea umform Code of Administrative Procedures Law Reform reieorganic Law to revise Arbitration Law review Civil and includ powers of th, for Chambers of Commercial Codes;I Judicia Comnmi and Commerc review of gender issue change in coart pmocedure under Civi Code PC Awus to usierestructure public defenders sytem; Incea nutmber of public defenderr, create legal aid programs and official courtt costs with of______________ ______________________ _________________________ system of waivers Alternatve Dispute e"Pand us of ADL- Reslution arbitration in Chamber of MeW inc)s p rff b o Commerce, ar ttion, mediation, anhd conciliationr under the Civil Procedure Code; and set up ADR mechanismst establis spaulicms ef orts Lgal P Frefei IWmprv saloton ofjudges at a.e girdt inaans., tribunal, tax and amdtv ispro court l.18 wh mrv Judicia ediics code and divepcuw sysdan hurW." stndandO of - cndut and disciplinary sytmfor Imwyes; rapport bar assocIaton in oip g its rola and prWing earvice to die public L"ga Ed.cullu training for court pesnalm establish continuing leg! traninmg of arbter and improv law school And Trskft in ow aimiwsbvAneducation for Judges and mediator for A1)R curriuum, admission and procedures, budget lawysm traiing on now rchaisnis; training of graduation requirements; management ~~proedure adopted, tranin for Judges for naun clams estabish graduate law court personne on information courts programs; establIs sstMS Judicial schoo; improv law librarie S Movement of Superior Court Cases and Backlog Accumulation 45000 ~~~~~~~~~~~~~~~~~~~Backlog 40000 *New Cases 35000 09Resolved Cases 30000 25000 20000 ...... .~~~~~~ Source: Annual ReoMrt of the .~~~~. ~Supreme Court of the Nation 5000 ~~~~~~~~~~~~~~~~~~~~~~Congress, 1990 and 1992 1987 1986 1989 1990 1991 1992 Cross Country Comparison of Judiciary Budget Size (As % of General Budget) 8- 5 - 4- _ 3_ U * - 2s- Costa RimPaga Guatemab cao Budget of the Judiciary (As % of General Budget and In Bil. Suc.) 140 2.5 120 - - Supreme Court Budget (BFi. 2 Suc.)2 100 * Percentage of General Budget Allocated to the so - - Judiciary 1.5 Source: Gene Budget of «e State 60 40 0.5 20 0 i 0 0 0 0 0 a a 0 a 0 0 0 0 0 0 0 fi0 - - - ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ . -~~~~~ P 0 14 RELACWON DE LOS SUELDOS JUDICIALES 1.991-1992-1993 1991 1992 S ...~~~~~~ ~~~~~ .. .. .... ................................. . ..... i00 ..... * @s 6~~~~~00 .... ... ...... :. ... ... ... ^ ,1 ........................ E~~~ ~0 .. .. ----------- 0 20 18 16 14 12 10 8 6 4 2 19 17 15 13 11 9 7 5 3 1 grodo I* c L O M B I A I 80' ~A/M -. 7- 78 7'^' C7. r ~~~~~ .C~~~~AR6~h P A C I F I C r EMEALDAS ,! ,,J MAABUR4 . st , , OC E A N ZM A B I ..o .. > J'' r !" } ,,7 /Sno Omino '1 /............ A. , PICH ~ ~ ~ ~ ~ ~ ~~ /^ (coGy A Y / ' t >'x / N A/ 2 '' J)~~~~ t , *r'- r'"' - r GUAYA ~~~~~~~ , 2'~HU P06 ~~~~~~~~~~~~~~~7 SumCi < >2877.] ECUADOR vp>s>t ~ ~ ~ ~ ~ ~ AlPAO ISAD -. : PAVEDuiz ROADS7 1Z~~~~~~~~~~~~(ACIILG DECLN - OTHER ALL- WEATHER ROADS R SANTIAGO~~~~~~~~~s--~-RIIBOD S*.__/< _ el 2/n// i5L4^l^RcimNs +~~~~' AIRPOR.S MAC".;, ECUADOR~~~~~~~~~~~~~~~~~POT RIVERS r" ~~~~~~~~~~~~~~- PAIROVICEDUNARE P E R U L IL SANSALVADOR I - NTERNATONAl BOUNDARIES ISLA SANTA CRUJZ O 25 50 75 100 KILOMETERS ISLA CISMT8 AN -5, 5- ISABELA 5.1. no b 1k. d Book. b/foe40f,oo m -oC do no kply. on.O, pidOoI 11. WorU hook Ccwp. oe odnooo bgoXM lSD@I oIoOs ohoo,,> bro ib or ,Tf O,'o*t,fo ~optodoIo S IA 5ANTA MAARIA o 25 st stOt.-V S1i 80' KWMOSRS Er ?0 * 90 I I K MI __ O