Accountability e Transparência da Justiça Civil - Ed. 2019

Accountability And Transparency Of Civil Justice: A Comparative Perspective - Apêndice. Traduções

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Apêndice. Traduções

Daniel Mitidiero

Introduction

The International Association of Procedural Law, chaired by Professor Loïc Cadiet, will host the XVI World Congress in Kobe, Japan. This year the general topic of the event is Challenges for Civil Justice as We Move Beyond Globalization and Technological Change. The local organization will be led by Professor Koichi Miki. Among the many interesting subjects that will be addressed, we will, along with Professor Yulin Fu (who will deal with the problem from the perspective of Eastern countries), address the issue of accountability and transparency of Civil Justice in Western countries.

In order to do so, our study included national reports from Germany (written by Christoph Kern, Johannes Kist and David Carnal), Argentina (Maria Victoria Mosmann), Brazil (Luiz Guilherme Marinoni and Sérgio Cruz Arenhart), Canada (Gerard Kennedy), Scandinavia (Anna Nylund), Spain (Enrique Vallines-García), United States of America (Scott Dodson), France (Soraya Amrani Mekki), England (John Sorabji), Italy (Luca Passanante) and Portugal (Paula Costa e Silva). We thank in advance for the fundamental collaboration and partnership of all colleagues and in this endeavor.

The professors who accepted our invitation wrote essays addressing the following issues – all of which proposed by our Association: i) external and internal judicial independence; ii) form of judgments and legal reasoning of judicial decisions; iii) transparency of Civil Justice in relation to the use of new technologies procedural information and communication; iv) third-party evaluation and ranking of civil justice. As we can see, all these matters refer, in different ways, to the way Civil Justice reflects and concretizes the basic foundations of the Democratic Rule of Law: without independence, impartiality and legal reasoning, there is no way to promote and assess the relation of judges to the law, whereas without transparency and publicity the control of the judicial acts by the participants of the proceeding and by the society in general would be impossible to obtain 1 . Lastly, the evaluation of Civil Justice by its consumers represents the public perception of its results – which is important for the creation of an environment of institutional improvement, mutual trust and social development.

The basic idea behind this essay is that the evolution of the relations between the different functions of the State – notably, the relations established between the legislative and the executive powers over the judiciary –, and society in general creates the need of thinking and evaluating Civil Justice under a new perspective. Therefore, we try to identify what is the root of this change and how it points out different indicators for an institutional design and for a behavioral model compatible with the current reality.

1.The Emergence of the Question from a Modern Perspective: Legislator-Judges? Irresponsible Judges?

In 1983, at the Congress of Würzburg, Germany, the International Institute of Civil Procedural Law – whose work began in 1950 in Florence, Italy – agrees to leave behind the term “Institute” and the qualifier “Civil” in its name, and decides to adopt a new name – one which emphasizes the aggregative character and the broader thematic scope of the group –; the International Association of Procedural Law is then consolidated, and Mauro Cappelletti is elected president.

This memory is not a mere digression. On the contrary, it aims to highlight the close connection of our Association and the transformation of the way in which the relations among Civil Justice, the other powers of the state, civil society and the people who consume it can be understood. In 1984, Mauro Cappelletti asks: Legislator-Judges? 2 Soon after, in 1988, he completes his own question: Irresponsible Judges? 3

These questions point to a significant transformation in the mode of production of law and, consequently, in the way of promoting and assessing the reliability of the actors involved in the proceedings. What is more: they point to the need for seeking an institutional design capable of properly holding these actors accountable.

This essay aims to analyze the consequences of the first question: what is required of the Civil Justice in terms of accountability and transparency, due to the advent of the transformations of the relations among the powers of the State and Civil Justice with its consumers? And also: what is the impact produced by new technologies on the administration of Civil Justice?

For our present purpose, we will explore the idea that there is a generalized perception, which emerges from the culture of the twentieth century, that judicial decisions are not merely declarations of norms with univocal and totally pre-existing meanings, taken only by a simple logical syllogism 4 . Indeed, there is some consensus that judicial decisions represent a collaborative effort between legislative and judiciary powers, with judges being called to give meaning to the text of the constitution and of the legislation as well. They do so not only by using logic, but also argumentation around the different possible meanings that these texts can present. 5 .

If this is true, then it is necessary to revisit some essential themes around which Civil Justice is placed in a Democratic Rule of Law.

First, it is necessary to examine the relationship of the executive, the judiciary and society in the perspective of the independence of judges, without which it is not possible to speak of impartiality and objectivity of law. Second, it is necessary to examine the relationship between the legislature and the judiciary with regard to the interpretation and application of law, without which one cannot understand the radical importance of the legal reasoning behind judicial decisions. Without examining these two issues, Rule of Law risks becoming an illusory promise.

Third, it is important to examine the transparency of civil justice, especially regarding the use of new technologies, without which the ideal of access to justice and its control by the parties and by society at large can be unduly restricted. Fourth, it is important to analyze the publicity of proceedings and decisions, without which control of judicial work by the parties and society at large can be easily eclipsed. Without analyzing these two issues, the Democratic State runs the risk of having the participation of the consumer of justice in the management of public affairs unduly obstructed.

Furthermore, for a broader framework for analysis, it is essential to examine such issues not only in abstract terms, but also from the rich experience provided by comparative law. It is with the aid of comparative law that one can think of scales of greater or lesser compliance with the requirements imposed by the need for an accountable and transparent Civil Justice.

2.Judicial Independence (External and Internal Independency), Impartiality and Objectivity of Law

Judicial independence is a “statut” that makes the “vertu” impartiality possible 6 . Independence, therefore, is the basic assumption of impartiality: without certain guarantees it is difficult to safeguard the position of third party which characterizes the functions of the judge in the proceeding (the "Unparteilichkeit" of German doctrine 7 , the "impartialité objective", also known as “impartialité fonctionnelle” of the French doctrine 8 ) and the necessary absence of personal interest of the judge in his result ("Unbefangenheit", the "impartialité subjective9 ).

As one may observe, independence and impartiality are necessary, but not sufficient conditions for promoting the objectivity of law, i.e., its intersubjective control in its interpretation and application, avoiding institutional and personal interference in judicial decisions. Without independence and impartiality, a “congruence between official action and declared rule10 can hardly be verified. Hence the frequent link between independence, impartiality and the “Bindung an Recht und Gesetz11 that is expected from judges, i.e., between independence, impartiality and the “Rule of Law12 .

The problem of judicial independence can be resolved in two distinct directions: external and internal. Externally, it is important to analyze the relations between Civil Justice, other Powers and civil society. Internally, the importance lies in the relationships established within the Civil Justice itself. The problem of impartiality, in its turn, is basically solved by analyzing cognitive biases, which may concern the person of the judge and his family and social circle or his prejudices.

The challenges faced and the solutions adopted by the different legal systems in relation to these problems differ in certain respects. There is no doubt, however, that all countries studied converge to the need for promoting independence of Civil Justice, and judicial impartiality as indispensable means for the organization of a fair trial 13 , and an accountable Civil Justice. It is no accident that independence and impartiality are two of the first principles listed by the American Law Institute and UNIDROIT as essential to the proper administration of Civil Justice 14 .

From the point of view of independence, the different jurisdictions seek to surround Civil Justice with guarantees aimed at avoiding undue interference by other Powers and society in general. It is common, therefore, the existence of lifelong guarantees, usually acquired after a probationary phase and generally requiring due proceeding for removal of the career judge; irremovability and the existence of a compatible remuneration, generally kept at the same level in case of retirement. 15

The institutional design of each country, however, which sometimes seeks to promote greater democratization of Civil Justice by means of political and social participation in its management, ends up also placing certain challenges on the table of discussions regarding judicial independence. Thus, issues related to the administrative and budgetary autonomy of the Judiciary and to the selection of judges usually play a sensitive role in the subject.

In general, there is a concern about the need of granting Civil Justice administrative and financial autonomy: even in countries where, for example, the judicial budget is in the hands of the Executive Power, notably in the hands of the Ministry of Justice, such a solution tends to entail a lower degree of judicial independence 16 . In view of this, Western jurisdictions seek to ensure administrative and financial autonomy of Civil Justice by entrusting their government to the Judiciary itself 17 , to Agencies 18 , or to Councils independent of other powers 19 .

In Spain, there is also a specific concern related to the administrative autonomy of Civil Justice because the" oficinas judiciales "or “judicial offices” – organs that give administrative support to the judiciary – are practically in the hands of the Executive Power, which can lead to an undue management of the Executive in judicial matters 20 . For this reason, this dependence is viewed with great reserve by legal doctrine, which strives for the autonomization of the administrative apparatus linked to the functioning of Civil Justice 21 .

In general, judges are chosen by public tender, which usually means they will serve for life 22 . The exception here is the United States, where federal judges are politically appointed – they are named to a lifelong position by the President, with the advice and consent of the Senate, in the form of article III of the Constitution. State judges, in turn, are elected. This contingency leads to a concern about the independence of state judges regarding public opinion in the United States 23 . Although this model ends up promoting greater accountability to the people, which raises the democratic index of judicial activity, it also tends to entail a lower level of judicial independence 24 .

These guarantees aim at underlining the need for submitting Civil Justice to Law and to Law only: judges who do not feel threatened by external and internal pressures have no reason for bowing to attempts of interference in their function. Faced with transformations in the sources of law and the gradual convergence of legal traditions 25 , countries that do not normally recognize the judicial precedent as the primary source of law – such as Italy – question whether attachment to precedents could in any way violate the need for independence 26 .

The question is obviously difficult and depends on other questions concerning the meaning given to the interpretation of law and the way in which the different legal systems seek to organize the role of the Supreme Courts and to promote the binding to judicial precedents 27 . In general, however, a realistic perspective tends to consider the need to promote, by force of judicial action, the principles of legal security, freedom and equality of all citizens before the law by granting binding force to the precedent or – at least – persuasive force 28 .

From the perspective of impartiality, the main concern stems from the need to avoid biases in decision making. Therefore, one must seek to prohibit the jurisdictional activity in situations in which the judge can enter into a conflict of interests or in situations that may bring his deep-rooted prejudices to surface.

In the English experience, for example, such situations were appreciated in the Locabail (U.K.) v. Bayfield Properties Ltd., tried in 2000, and later collected by the Lord Chief of Justice in the Guide to Judicial Conduct. In summary, the judicial activity is prohibited when there is a bias against or in favor of a certain party, when the judge has patrimonial or other direct interest in the case, or when a reasonable and fair third party, after evaluating all the facts of the case, arrives at the conclusion that the decision is biased 29 .

Prohibitions which are normally identical usually take place in different Western countries, proving to be a general trend. Judges, for instance, are often barred from participating in any partisan political party activities and performing their functions on matters in which their own interests or the interests of people from their social and familiar circle are at stake (nemo iudex in re propria). These prohibitions clearly seek to safeguard the judicial function of a possible conflict of interest. Less common, however, is the possibility of denouncing a deep-rooted prejudice of the judge as a factor of judicial partiality. The English formula, which consists on the possibility of submitting...

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