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Alberto M Binder — Transcript

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0:04Well, good afternoon. As is fitting and
0:08pleasant, I would first like to express
0:11my gratitude for your hospitality, the
0:13beautiful hospitality that one enjoys
0:16so much. And secondly, in this era of
0:24so many false individualistic illusions
0:26, we must always highlight and thank
0:29the builders of community. So, a thank
0:34you to our friend Abel Zamorano and his
0:37entire team for having painstakingly
0:40built this common space that we all
0:43enjoy and that makes us better. As
0:50other speakers have said, I will have
0:53half an hour to provide a reading guide
0:56for what you have in the immense book
0:58you have received. So, please take it
1:02in that way. And I have used this
1:06simple framework used in institutional
1:09analysis: where do we come from, where
1:11are we, where are we going, because it
1:14allows us to have a more complex vision
1:17, to get away from self-praising
1:19optimism and, at the same time, from a
1:22pessimism that leads nowhere in order
1:24to understand the processes we are in
1:27regarding this issue. I will be
1:31schematic. I will try to convey
1:33concrete and clear ideas to you as a
1:37guide for understanding this problem.
1:41First of all, we must reflect and not
1:45forget not only the importance of what
1:49we have called the reform of criminal
1:53justice in Latin America, but its
1:56magnitude in just 20 years. Nearly 40
2:01new procedural codes have been approved
2:04. And this meant finally fulfilling in
2:10our countries what had been a mandate
2:13of the liberal republican thought of
2:16the first decades of the 19th century
2:19that had taken us so long. We went
2:22through written processes, we went
2:25through mixed ones, we did everything
2:27until we reached these 20 years. Where
2:31look at this enormous work that took
2:34place. This is the first thing we must
2:38keep in our memory because sometimes we
2:41get lost or we do not reflect
2:43adequately on the magnitude of what all
2:46our countries and the entire region
2:49have decided. From there, in this "
2:54where we come from," I want to
2:56highlight only three ideas. You will be
2:59able to see many others. First of all,
3:02when the decision is made to advance
3:05the reform process, it is not for a
3:08technical reason or because of
3:10procedural schools. Hmm. That is not
3:14the reason. The reason is much deeper
3:17and continues to this day. In some way,
3:21some coming out of darker times, others
3:24not, but all of Latin America begins a
3:27new period of installation and thinking
3:30about democracy. And there appears a
3:35new idea, relatively, no, I would say
3:37it is new, in the consideration of the
3:40democratic thought that we have to
3:42maintain. It is not possible to build a
3:46quality democracy without a quality
3:48justice administration. But I repeat,
3:52it is not possible to build a quality
3:55democracy without a quality justice
3:58administration, but not in the sense
4:01that we will have a quality democracy
4:04and by derivation we will get a quality
4:07justice administration. No, no, but
4:12rather the incorporation of what from
4:15then on was called the judicial
4:17question of democracy; we know that the
4:20dimension of judicial systems, and
4:23historically since Beccaria onwards,
4:25criminal justice has been a central
4:28political concern. That is to say,
4:32working on that administration of
4:35justice to make it high-quality is a
4:37central and important part of building
4:39that quality democracy. We come from
4:43there, and you might tell me, "We
4:45haven't achieved it." No, but why
4:47should we have achieved it in 20 years?
4:52I say this because yesterday I was
4:54listening to the candidates for
4:56different offices, I think they were
4:58for president, and they kept demanding
5:00a quality democracy. It remains the
5:04issue, and therefore we will not be
5:06able to build that quality democracy we
5:08all long for if we do not take the
5:10administration of justice seriously and
5:12ensure it is quality-driven. That is
5:15where we come from, from that
5:16reflection, from that clear idea.
5:20Everything else was how to technically
5:22build ideas and tools to solve that
5:24problem. Second, an idea that I want us
5:31to be clear about regarding where we
5:36come from. When that political need was
5:41raised, luckily for Latin America,
5:44there were tools available; but those
5:48available tools were the result of at
5:52least 30 previous years of networks of
5:55proceduralists and academics who had
5:59been working intensely to define what
6:02those procedural rules would be. The
6:07so-called model codes for Ibero-America
6:10, both in criminal and procedural
6:12matters, began to take shape in the 60s
6:15, and there was a cooperation network
6:21throughout Latin America that got in
6:24touch and worked together as if we all
6:27belonged to the same sect, and that
6:30also allowed for the scale of the
6:33problem. Let's remember that because I
6:37will bring it back at the end. Third,
6:41where do we come from? If this great
6:45political problem had been left in the
6:48hands of judicial operators or even
6:52academics, the reform could not have
6:55been carried out. The reform process is
7:00characterized by a deep articulation
7:02with social movements, organizations,
7:04and human rights movements that were
7:06working for that better quality
7:08democracy through social coordination.
7:12It was a moment of openness to society.
7:14There was no fear of opening up to
7:18society in order to build that highly
7:21complex process of change. I want to
7:25highlight this; we could talk, and you
7:27will see in the essay I left you many
7:28other reasons regarding where we come
7:30from, the historical background,
7:31cultural problems, and so on. But I
7:35wanted to highlight these three because
7:38they relate to what we will later see
7:40as the need for a new agenda for
7:43criminal justice reform. Alright, there
7:47we are. Second point: from where we
7:53came to where we are now, which also
7:56involves a much longer task to explain,
7:59but I want to highlight two or three
8:02phenomena, let's do it in threes again.
8:09The first one, which should in a way
8:11make us more satisfied, is that
8:13throughout the region, the idea, the
8:16concept, and I would even say a certain
8:19cultural consolidation regarding what
8:21the adversarial system is, has been
8:24solidified. I don’t know anyone who
8:27is asking to go back to the mixed
8:29system, to the written system. There is
8:31no one in Latin America, right? Why?
8:34Because it was understood that this was
8:36a derivation. of international human
8:39rights treaties, a derivation of the
8:42constitutional model of criminal
8:44procedure, and this became consolidated
8:46. As my mentor Julio Mayer used to tell
8:51us, whom it is good to remember since
8:54he passed away recently. Look, it will
8:57take us a long time to implement, but
8:59this is the path we have, we have
9:00nothing else to put in its place. We
9:03have to build this well, but this is
9:05the constitutional model; it’s not
9:06just about the codes or the laws, it is
9:08in the Constitution and the treaties.
9:11And today, even all the students are
9:13clear on this. This is no small thing,
9:16let’s say; this is something to be
9:18glad about, it is consolidated. And
9:20someone might tell me, it is also
9:22consolidated at a cultural level. Of
9:24course, because society—and the media
9:26helps us with this—always believed
9:28justice was more or less like this, and
9:30now they discover it doesn't turn out
9:32very well, but it is more or less how
9:34it was in the cultural imagination. So,
9:36this conceptual, political, and
9:39cultural consolidation is an important
9:42part of where we are. However, this
9:48coexists with another problem: when we
9:51no longer look at the conceptual model,
9:54but rather at criminal justice as a
9:56universe of practices, as the set of
9:59things we effectively do, things look
10:01different. So, today we have a strong
10:06tension between the adversarial model
10:10and the set of practices that are being
10:14developed, which are not uniform either
10:18, but let’s put it more caricaturedly
10:21. The adversarial system that judicial
10:26operators have in their heads is not
10:28exactly the one from the model. Hmm. Uh
10:33, which is quite a bit more established
10:36, and there, a process is triggered
10:39that we already know and study as the
10:42inquisitorial reconfiguration in the
10:45world of the practice of adversarial
10:48systems, which is also very complex.
10:53But in general terms, if one looks at
10:56how the system functions, judicial
10:59operators slowly push the operation,
11:02the actual configuration of the system,
11:05toward a type of operation typical of
11:08mixed systems; they just let it drift
11:11there. And what does that mean?
11:15Basically, a preparatory stage that is
11:17bureaucratized and bogged down in red
11:19tape, and low-quality oral proceedings.
11:24That is what happens if we leave the
11:27system to drift toward wherever the
11:30judicial operators take it. But this is
11:33not so clear because there are many
11:35people working to change course, to
11:39steer it. That is why we have a certain
11:43feeling of disorder throughout the
11:45region, because it is not clarified. I
11:50repeat, we had to ask ourselves now
11:52that we can relax a bit and are no
11:53longer in the battle against the
11:55inquisitorial system in the conceptual
11:57model, could it be any other way? I
12:03remember at the beginning of the reform
12:05, when we started working with Canadian
12:08or North American colleagues or
12:10prosecutors, they would tell us, "It is
12:12impossible to establish the adversarial
12:14system by changing the laws. It is
12:18impossible because our own experience
12:20is that it took us centuries." And we
12:25would tell them, "Yes, that may be, but
12:26it's not like our written systems." You
12:29in Panama had it more or less
12:31prefigured, you had more opportunities,
12:33but in most countries, the written or
12:35French mixed systems were not going to
12:38evolve on their own toward an
12:40adversarial system. What we were saying
12:43was, we have to make a legislative
12:46strike and then start to evolve. And
12:49that strategy was—was right. It was
12:53right, but there we are. So, let us not
12:56be surprised that we now have all the
12:58problems of a system that has to evolve
13:01. Or do you think that the Anglo-Saxon
13:05or North American systems didn't have
13:07many of the problems we have 50 years
13:09ago, and that they aren't constantly
13:11correcting them? That brings me to the
13:14third element that I want to highlight
13:17about where we are, which has to do
13:20with the fact that we have lost the
13:23tension of the system's implementation.
13:29Who is worrying about the
13:30implementation of the system? I mean,
13:33once they started—once they went into
13:36effect in 2016, it's as if you let go,
13:42The leadership from Ministries of
13:44Justice or the implementation
13:46commissions in the various places that
13:49had been set up stop functioning, and a
13:52system of mutual adjustment is supposed
13:55to begin; but that implies a new type
13:57of leadership and a new type of
13:59technique. A technique for adjusting
14:03the system that we have not developed
14:05and that does not materialize in a
14:06clear way; in other words, the tension
14:08is no longer there. And notice that
14:12this is a problem, because if we have
14:15spoken of the magnitude, of the
14:17political importance, of what it
14:19signifies, and of something that is
14:22also an achievement we must highlight,
14:25it is the great fear that existed at
14:27the start of the reform: that we could
14:30change the codes, that could be done,
14:33but it would remain floating in the sky
14:35of the normative. That did not happen.
14:40The criminal justice reform touched
14:43down. And today we have—consider the
14:48magnitude of this—more or less 70
14:50procedural systems that are functioning
14:53in a different way. Tens of thousands
14:58of prosecutors have been appointed in
15:00Latin America, thousands of judges,
15:03tens of thousands of public defenders,
15:05because in most countries there was no
15:08strengthened public defense. That is to
15:12say, the level of investment, the level
15:14of touching down that exists has been
15:17very notable. So, today it is strange
15:22that these techniques of continuing to
15:24implement have been lost, as if this
15:27could be implemented in just three or
15:29four years, and we have strong
15:32leadership problems in the mutual
15:34adjustment of the institutions. That is
15:38where we are. That is where we are. Hmm
15:40. So, this, what I am saying, is an
15:44optimistic view. In some things yes, in
15:49others no. It is not a pessimistic
15:51measure, no. Pessimistic would have
15:53been if the codes had just remained
15:56there, that we would be talking about
15:58things that are not applied, right? But
16:02it is realistic that we must have a
16:05reality check to realize that of such
16:07magnitude, just here in Panama, in how
16:10many years, the Public Ministry
16:12increased its number of officials
16:14twofold or threefold, I believe. Hmm.
16:18My country even more because we have
16:20many systems. So, that is something of
16:23very great magnitude. That is where we
16:29are setting the system in motion, with
16:32general clarity of the models and some
16:35problems, because the codes—these 40
16:38codes we have that materialize and
16:41provide details to the adversarial
16:44criminal procedural system—I always
16:47say: they are 40 versions of
16:49Frankenstein. And you find a leg that
16:54comes from the previous code. An arm
16:58that comes from someone's whim. We
17:01always find some congressman's ear who
17:03said, "Include that provision or I'm
17:05not voting." So, it's not that I can't
17:10guarantee it; there isn't a code in any
17:13country that doesn't say, "How pristine
17:16," they all have twists and turns. But
17:19I am also convinced of something, and
17:20you can tell me if that's the case. I
17:22don't know of any procedural code in
17:24any Latin American country that
17:26prevents the implementation of the
17:27accusatorial system. Or that prevents
17:31the implementation of the accusatorial
17:32system. That is not the case. So, well,
17:36until Franin learns to dance salsa,
17:38let's give him time. It's going to take
17:42time. In the meantime, we should work
17:45more on smoothing out all the rough
17:47edges and mismatches in the codes,
17:50which aren't really errors. They are
17:54the product of different interests,
17:56different occurrences in the
17:58development state of each country, and
18:01their traditions. That realism of the
18:05imperfection of procedural codes
18:07allowed them to be approved, not just
18:10generic conceptual ideas. Right, where
18:14are we heading? Because we have little
18:16time. And here I want to propose only
18:21four or five central challenges that I
18:24think are part of this new agenda we
18:28need to undertake for reform. First of
18:31all, if we no longer have to be
18:33discussing the general ideas of the
18:36accusatorial system, everything has
18:38exploded into a thousand different
18:40problems. And here we also have a
18:44problem, which is that we can get
18:47distracted by the details and not
18:50realize how we need to keep pushing the
18:53system toward that. And on the other
18:59hand, we do have a challenge: we have
19:01very little empirical knowledge of what
19:04is happening in our systems. A lot—we
19:10don't have our information systems,
19:13which exist in some countries and
19:15sometimes exist with many resources,
19:17giving us a clear idea of what is
19:20really happening; numbers are no longer
19:22enough. This universe of practices has
19:25become so complex that the gut feeling
19:28of an old prosecutor, judge, or someone
19:31isn't enough. We have to put numbers on
19:33the table. Hmm. In my country, for
19:38example, we just did an investigation
19:40that made us fight with three-quarters
19:42of our public ministries, where we were
19:44able to demonstrate that when we look
19:46for high-quality outcomes from the
19:48Public Prosecutor's Office, they don't
19:50reach 7%. In other words, 90%of the
19:55cases lead to nothing. So, this must be
19:59put on the table; otherwise, it's easy
20:01to say the media is pushing us, but
20:03then one says no. Well then, first
20:07challenge: to build a new agenda, a new
20:10stage, we must develop empirical
20:13knowledge, both with data and a much
20:15finer analysis of jurisprudence, of how
20:18criminal justice problems are
20:21materializing, because otherwise, we
20:23often end up doing scholasticism; that
20:26is, having discussions where we don't
20:30know if they occur in reality or not.
20:36The institution currently facing the
20:39greatest challenges, fortunately, is
20:41the Public Prosecutor's Office. The
20:45Public Prosecutor's Office is an
20:46institution that is, fortunately, in
20:48trouble. Why is it in trouble? In the
20:53first place, because in recent years,
20:56much more than we sometimes expected,
20:58the region's prosecutors have shown
21:01they can take on powerful sectors. They
21:09have taken on business people, taken on
21:11politicians, they have taken on those
21:14who have power, and today we are
21:16feeling the backlash of that. Do you
21:19know how the Public Prosecutor's
21:21problem has become complicated? When
21:25the status quo and political leadership
21:27became aware, and especially when the
21:30mafias realized that there was a
21:31powerful institution there. Is this
21:37good news? Yes. Now, as we always say,
21:41if the Public Prosecutor's Office is
21:43going to move up to the big leagues, it
21:45has to adjust how it operates.
21:48Furthermore, it also has to face new,
21:51very complex forms of criminality,
21:54criminal markets, and on the other hand
21:56, very massive phenomena of
21:58victimization that are also new, first
22:01and foremost gender violence and others
22:04. So, the Public Prosecutor's Office is
22:07, fortunately, in trouble. Now a lot of
22:13work in political re-engineering and
22:15institutional re-engineering must be
22:17put into it. What do I mean by
22:21political re-engineering? Well, when
22:24the new Public Prosecutor's Office is
22:26discussed in Latin America, because the
22:28one that existed before did not have
22:29the magnitude of the one today, or in
22:31some countries, it barely existed at
22:33all. There was a discussion about
22:36whether it would be dependent on the
22:37executive branch or would be an
22:38autonomous institution. And the idea
22:43that prosecutor's offices are
22:46autonomous institutions ends up
22:48prevailing in Latin America; but only
22:51now are we becoming aware of what that
22:54means, because autonomy can be a
22:57situation of weakness (not talking to
23:00anyone) or autonomy can be a situation
23:03of strength, but at least beyond having
23:06a serious, rigorous, intelligent
23:08dialogue with others, including
23:11political actors. What I am sure I
23:15cannot renounce is leaning on social
23:18power for support. That is
23:21institutional autonomy. And when we
23:24tell prosecutors, "But look, if you now
23:26need to build power for autonomy to be
23:28true autonomy, with these numbers and
23:30this way of working, how are you going
23:32to build alliances with the citizenry?"
23:37Hm. So, this is something we must start
23:41working on in a new way to understand
23:46this autonomy. The Public Prosecutor's
23:49Office must also face a deep
23:51reengineering of its work processes and
23:54, consequently, its organizational
23:57models. Much has been done, yes, but it
24:01must be deepened, because that Public
24:03Prosecutor's Office which receives tens
24:06or hundreds of thousands of cases—and
24:09generally speaking, let's assume, I
24:11don't know the numbers here, that they
24:14have 90%of cases archived. cannot
24:18present itself in a new way like that;
24:21it has to learn to build quality exits
24:23in a much more sophisticated manner,
24:25and for that, the matter is key. The
24:28key lies in abandoning the worst
24:31disease we have, the worst obstacle,
24:33which is the culture of paperwork. In
24:38other words, if what prosecutors are
24:40going to do is arrive at their offices,
24:42open case files, and process them, we
24:43are in trouble. The abandonment of what
24:48we call investigation by routine duties
24:50in favor of investigations by
24:52hypothesis, as we were told. Well, new
24:54forms of grouping with more flexibility
24:57by subject, while also carrying baggage
25:00that we still haven't been able to
25:02resolve and which it's time we pay full
25:05attention to, because this has been
25:07going on for 20 years without a
25:09solution: we have not been able to
25:12modernize and normalize the
25:13investigative police. The question of
25:19whether it belongs to the Public
25:21Prosecutor's Office or not is a
25:22secondary issue, but our investigative
25:24police are not keeping pace with the
25:26needs that prosecutor offices have
25:28today, and this must be addressed very
25:30deeply. So the new agenda is a new look
25:35at what the effectiveness of the Public
25:38Prosecutor's Office means, and a lot of
25:40work needs to be developed there. The
25:45Attorney General, uh, outlined these
25:47lines and you, uh, heard it above all
25:50in the opening speech. Second, the
25:53judges, we will not tire of, uh,
25:58pointing out the importance of judges,
26:01but judges have two important tasks.
26:06And let's remember something that is
26:08also a kind of problem we are dragging
26:10along: that the judicial reform was,
26:12above all, a first-instance reform. And
26:14that's not bad, but today we are paying
26:16for a lack of clarity in the higher
26:18courts, in particular the Supreme
26:20Courts. But judges, if there is
26:23anything we are asking of them, it is
26:26that they be conscious custodians of
26:28oral proceedings. Hm. And being
26:33custodians of orality, which remains a
26:36central theme, means being aware that
26:39when we speak of orality, we are
26:41talking about rigorous, public
26:43litigation. Orality is not just blah,
26:49blah, blah; it is rigorous, public
26:51litigation, and we are still far from
26:54that. We are seeing how the core, the
26:58touchstone of all this, which is the
27:01production of evidence, is relaxing;
27:04trials are being allowed to drag on,
27:06and trials are being conducted that
27:09lack rigor. The very idea that one must
27:12prove disputed facts, which we always
27:14say—that is in the records—is not a
27:16new idea. Uh, it is being abandoned,
27:19anything is being proven, and the
27:20opening order for trial is not being
27:22given enough attention. That is where
27:25we must ask judges to be clear
27:27custodians of orality as rigorous,
27:30public litigation. And we must be
27:33careful with temptations. No one is
27:35against virtuality, but we must be
27:38careful of the loss of publicity and
27:42the loss of rigor that certain forms of
27:45virtuality entail, keeping an open mind
27:49, but without getting carried away by
27:53irresponsible enthusiasm. And the
27:57second task we must ask of judges on
28:01this new agenda is more consistent work
28:05in the development of precedents. The
28:10function of justice, for all judges, is
28:14legal certainty; and that is a system
28:17of precedents where we are also
28:20rigorous in following and analyzing
28:23those precedents, which is something
28:26always linked to facts and law, and
28:29where both Anglo-Saxon and continental
28:32European systems now align. We have a
28:36strong challenge regarding the legal
28:38profession, but much has been said
28:39about that here, so I will leave it at
28:41that. But they have, in the law of
28:44advocacy, what I would say is, if there
28:47is an ethical problem, it is an ethical
28:49problem in a different sense: that we
28:52lawyers must all have a strong
28:54adherence to the rules of the system,
28:57to fair play, to a fair trial. It is
29:00not a problem of ethics or abstract
29:03values, but rather that the lawyer, the
29:05legal profession, means that we will
29:08accept the rules and not be pulling
29:10them in every direction. We know this.
29:14Any soccer player...fair play would be
29:16impossible if there were no adherence
29:17to the rules by the players, which
29:19sometimes fails, and well, it fails and
29:21for that we have referees; but, in
29:23general terms, the culture of fair play
29:25, which used to be called procedural
29:27good faith and should continue to be
29:28called that, is the axis of
29:30professional ethics. And judges must
29:32also demand this of lawyers with
29:34greater strictness. Every time fair
29:38play is affected—I only have two
29:40minutes left and I'm finishing. Every
29:43time the game is affected, the fair
29:45trial, when there is no adherence to
29:47the rules, we must be rigorous because
29:49there is an ethical impact there. The
29:53system provides enough tools for any
29:56lawyer to manage their interests well.
29:59They do not need to break the rules. Hm
30:02. And this seems to me to be something
30:05that today we must be clearer about
30:07with the students who are there,
30:09telling them, "Gentlemen, here is a
30:11system of rules to be respected." And
30:14I'll finish now with the academy. The
30:17academy, and since we are here in an
30:19academic setting, must also take on
30:21challenges. I believe it is time for
30:25this new agenda, which we have to build
30:27for the next 10 or 15 years, to once
30:29again have the participation of this
30:31network of institutes to which we all
30:34belong and which played such an
30:35important role. And we have to get to
30:40work on, uh, developing and giving
30:43technical capacity to public
30:45authorities to take the criminal
30:50justice system to a new stage. That is
30:54a role we must have there. It is the
30:55most beautiful role we can have as
30:57proceduralists, as, uh, penalists:
30:59thinking about the development of the
31:02system, not entertaining ourselves with
31:04the scholasticism that allows us to
31:06build castles in the air. Let's make a
31:09realistic agenda and let's make a
31:11realistic theory about the problems of
31:13our systems. And finally, we have the
31:17great pending task of making legal
31:20education clearer. For that, we have a
31:24theoretical challenge, I insist, and
31:26you will see it written there: the
31:27abandonment of the theoretical corpus
31:29of the mixed system, which is so
31:31powerful that we still believe we can
31:33explain accusatory systems with the old
31:35ideas of the mixed system, and it
31:37cannot be done. For the younger ones,
31:41this is a fantastic time because we
31:42have to make all of this explode into
31:44new ideas, into new research; you have
31:46to write. Put all of us who write in
31:51parentheses, so get enthusiastic
31:54because there is a lot to develop and,
31:57above all, to recover something so
31:59beautiful that we all keep in our
32:02memory, which is the collaborative
32:04effort that all these spaces allowed,
32:07that, uh, each one would be nourished
32:10and, above all, uh, it pushed us toward
32:13the most satisfying thing: thinking,
32:15speaking, saying, studying, knowing
32:19that we are clearly doing a good thing
32:22for our countries. So, go ahead. That
32:25is the Academy in Motion. Thank you
32:27very much. Ah.

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