21 July 2020
In this post, Chilean National Defender, Andrés Mahnke, talks about the progress made in Chile's criminal defence with the EUROsociAL+ project
The so-called “social outcry” started in Chile on 18 October 2019 and transformed the country’s agenda, not only because its citizens demanded it, and because it exposed the activities of public institutions which now, more than ever, were struggling to cope with hitherto unseen scenarios stemming from the demonstrations.
The Chilean social outcry attracted international interest, since it included loss of life and hundreds of people with ocular mutilation, numerous complaints of serious human rights violations, and destruction of public and private infrastructures, among other consequences. As a result, the country received visits from representatives of several international human rights organisations, such as the United Nations High Commissioner for Human Rights, the Inter-American Commission on Human Rights, Amnesty International and Human Rights Watch.
In all these areas, Chilean justice and its actors had to take action, monitored by the justice system and the close scrutiny of an empowered citizenry and the international community. In this context, a series of adjustments and learnings took place, which started to become visible during the first quarter of 2020, and which had their acid test during March of this year.
However, this story had an unexpected twist, which dominated all scenarios and modified all agendas: the SARS-CoV2 Coronavirus, which causes the disease known as Covid19 . A few weeks after the disease reared its head in Chile, it forced a change to the electoral calendar for the beginning of the constitutional process and caused something which was unthinkable just weeks earlier: the end of mass social protest in public spaces. People went home and the streets were empty, in the same way as happened almost all over the world.
But reflection on the changes to the justice system and the lessons learned from the ‘outbreak’ must not stop. In fact, they have become even more essential to resume the fluidity of public activity when the health emergency ends. Nor does the outcry seem to have disappeared, rather it has been put on hold with a few resurgences due to the lack of food during the quarantine. Everything suggests the social and economic impact of the pandemic will exacerbate existing inequalities. Therefore, this period has been an opportunity to integrate our learning and anticipate future scenarios.
In the social protest scenario, one indirect effect was connected to the work of the different actors in the criminal system facing an unprecedented challenge in terms of coverage and operational capacity, because of the notable increase in the number of people detained and processed.
Between 18 October and 13 November 2019, the Chilean Public Criminal Defender’s Office – a public institution that guarantees the right to defence and which is made up of 722 officials and 524 external providers – attended to 20,645 people under arrest, an increase of 25.4% compared to the same period of the previous year.
These increases, however, were even greater during the initial days of the crisis. Between 20 and 28 October, a period during which much of Chile was under a “state of constitutional exception”, the institution registered 10,712 defendants undergoing detention reviews, representing an increase of 70% compared to the same period in 2018. Furthermore, whereas on average there are between 600 and 650 daily detention reviews in the country, at that time they increased to 1,100 daily hearings, reaching a peak of 2,508 detention reviews on 21 October.
Beyond this work, an initial conclusion showed that an indeterminate number of detainees were not assisted by public defenders, either because the Public Ministry had decided not to transfer them to detention review, or because the police did not report that they had been arrested. This meant that there was no jurisdictional control of these activities and there were no records.
This triggered a contingency plan in Public Defence to attend to people detained in the police units, because by institutional design, defenders are in contact with the detainee just before the detention review hearing before the supervisory judge. Although public defenders set up informal service centres in police stations and other police detention facilities, this gave direct coverage to only 105 of the 900 police stations in the country.
This gap need to be filled urgently, since numerous people’s rights have been violated, as described in reports from the human rights organisations who visited the country.
Institutionally, the Chilean Public Criminal Defender’s Office activated different measures, such as strengthening the dissemination of rights , coordinating with the rest of the actors in the system, and opening channels for collaboration with the police, among others.
However, the main initiative that followed the period of social crisis in Chile stemmed from the support lent by EUROsociAL+, European Union programme managed by the FIIAPP, whose specialists are currently collaborating with Public Defenders to prepare a ‘Criminal defence protocol for the initial hours following arrest‘.
Its main objective is to find a means to provide coverage that guarantees the right of detained persons to a defence lawyer in the shortest possible time, thus protecting their right to technical defence. Furthermore, as international organisations that promote and protect human rights have revealed, the presence of a defence lawyer is a safeguard to protect the detained person’s other rights, particularly to prevent torture.
These actions enable comprehensive, effective achievement of the institutional mission to guarantee the right to defence of any accused person at all stages of the criminal process, preventing violation of rights and strengthening judicial detention review, providing public defenders with more tools to appeal against the punitive power of the State on an equal footing before the courts of justice.
The objective is always the same: to reinforce institutional commitment to the rule of law, a peaceful society and democracy in Chile, a task for which we are grateful to have the steadfast, permanent support of European cooperation.
By Andrés Mahnke M., National Defender (Chilean Public Criminal Defender)
In relation to the work done together with the Chilean Public Criminal Defender’s Office, the EUROsociAL+ programme has just published a diagnosis of the criminal defence of people in the first few hours of detention in the Latin American country.
04 July 2019
The Open Justice Strategy of the State Council of Colombia, supported by the ACTUE Colombia project, has received a stellar reform award.
Early last month, I was fortunate enough to attend the 6th Global Summit of the Open Government Partnership in Canada , a gathering that brought together two thousand people from 79 countries and 20 local governments who, along with civil society organizations, academics and other stakeholders, make up the Open Government Partnership (OGP). This year, the Summit revolved around three strategic priorities: participation, inclusion and impact.
During the inauguration, and to my surprise, the initiative that we supported in the ACTUE project – a project managed by FIIAPP with EU funding between 2014 and 2018 – was displayed on giant screens: the Open Justice Strategy in the State Council of Colombia as one of the “ Stellar Reforms” selected in the last OGP cycle. It was very exciting to be able to experience that tangible impact of one of our projects, something that we rarely get to experience. I was even more thrilled than when I saw the Canadian Prime Minister Justin Trudeau live, which is really saying something. And for good reason, too. These 12 commitments have been selected by the Independent Review Mechanism from among hundreds of others for showing evidence of preliminary results that mean significant advances in relevant and transformative political areas .
The Open Justice Strategy in the Council of State of Colombia has, for the first time, allowed the Court to begin publishing its previous agendas and decisions, as well as information on possible conflicts of interest of judges and administrative staff; essential aspects of public accountability, as well as enabling citizens and civil society to do their work of social control. In the long term, these changes can reduce corruption in justice institutions and allow them to regain the trust of citizens . Justicia Abierta is one of the political tendencies in open government that is gaining greater traction, given the major impact that its actions can have on citizens; In particular, access to justice makes it possible to exercise other rights. In addition, this sectoral action contributes directly to the advancement of the 2030 Agenda through goal 16, Peace, Security and Solid Institutions.
The ACTUE Colombia project was supporting the Transparency Secretariat of Colombia in the preparation of its OGP action plans, as well as civil society organizations, by using specialized technical assistance to promote the creation of a space for dialogue between administrations and civil society to define their own priorities in open government .
This is a good example of the positive impact that delegated cooperation can have, thanks to the flexibility and innovation they bring to our partners and the technical assistance on demand that we carry out.
About the ACTUE-Colombia project
The Anti corruption and Transparency Project of the European Union for Colombia (ACTUE-Colombia) has supported Colombian institutions in the implementation of key measures for a Open Territorial Government with the aim of making progress in the prevention of and fight against corruption both at the national and territorial levels. To this end, the project supported the creation of conditions for the fulfilment of international commitments, the strengthening of social control, the promotion of the co- responsibility of the private sector, and the generation of cultural and institutional changes .
The project is financed by the European Union and managed by FIIAPP in coordination with the Secretary for Transparency (ST) and Public Function (FP). It has assisted three regional governments, six city councils and two hospitals in areas such as applying the Law on Transparency and Access to Public Information, drafting Anti-Corruption and Citizen Information Plans (PAAC), fostering accountability and promoting public participation. It has thus helped officials to understand that the right to transparency and access to information is an essential right on which other rights depend. It has increased their awareness by institutionalizing advances in active transparency and their knowledge of how to identify and manage the risks of corruption.
Carolina Díaz, legal technician in the area of Justice and Security at FIIAPP and, between 2014 and 2018, member of the ACTUE Colombia team
29 November 2018
Antonio Roma, coordinator of cooperation between justice systems at EL PAcCTO, reflects on the role and value of international judicial cooperation within the framework of the project
Today, international judicial cooperation is a necessity for all countries. In particular, if we talk about the European system, we have gone from cooperation between states to cooperation between judges of states, without the need to go through a centralised control system of administrative authorities. In that regard, in Europe, we therefore have extensive experience based on a principle of integration.
With the objective of developing this integration, at EL PAcCTO—a project financed by the European Union and managed by FIIAPP, and in collaboration with the Italo-Latin American Institute and the Camões Institute of Portugal—we work to strengthen effective judicial cooperation with Latin America. The region is full of professionals—true professionals, for that matter—who work in their respective countries and who are highly competent. However, the structures they have for working in international judicial cooperation remain very dependent on cooperation between states. At EL PAcCTO, we can go as far as the will of the states determines, since it is an on-demand project.
In any case, we are making a very strong commitment to facilitating cooperation systems, by increasing the acts of cooperation available to them. It is not about allowing them to help foreign judges or foreign prosecutors, but about giving them the best conditions to request help abroad: to open their borders to the world in order to receive information and investigate the crimes they are dealing with.
We are working through several lines: for example, we are facilitating an update of international cooperation laws to give them access to the new techniques that inevitably arrive. The truth is that crime advances so fast, money moves so fast, and the perpetrators of crimes cross borders so quickly, that any attempt to continue with a scheme based on cooperation between states typical of the mid-twentieth century leads to few results.
Organised crime requires being very up-to-date, and to achieve this, picking up the pace is very important. For this reason, we are working on the creation of joint investigation teams and other innovative cooperation techniques between states, and also in relation to cybercrime, because the existing forms of cooperation in this area, such as instant contacts between the state police and fiscal authorities, are in need of an update.
We are also establishing a line of work that is being used by different nations to facilitate computer technical systems. In this way, the system users, i.e. the prosecutor or the policeman who is on the last corner of the state border, will have the mechanisms to not only get the information, but also the facility to prepare cooperation events with other states. All of this will be made simple, facilitating the work of all parties and ultimately promoting greater international cooperation between them.
In short, EL PAcCTO is not based on training courses or on knowledge updates; instead we seek to have an effect which is as direct and practical as possible and, therefore, to learn by doing but also and, above all, by improving structures, systems and techniques.
28 June 2018
Posteado en : Reportage
The revolutions in North Africa and in the Middle East initiated democratic reforms, but also left space for threats such as terrorism. In both cases, cooperation has played and continues to play a determining role
In 2011, people took to the streets of the Middle East and North Africa. The Arab world called for democracy and rights in their countries through popular protests that were included in the concept of Arab Spring. Seven years later, the changes are not entirely noteworthy. Armed conflicts and terrorism have curtailed many of those expectations. However, political, economic and social reforms were initiated, which in some cases continue to develop at a slower pace.
These are processes in which cooperation has played and can play a determining role, contributing experiences from other countries that have gone through similar situations or confronting threats that slow down development. In this context of transition, several projects in the region are managed by FIIAPP with European Union funding. Those that have to do with justice and security particularly stand out.
Tunisia was the first country where revolution was mentioned. Since then, “there has been a first democratic election, a constituent government and an approval of the Constitution in 2014”. This was explained by Ángel Llorente, coordinator of the project to accompany judicial reform in the country that ends this year. The objective has been to carry out “an organisational reform as a consequence of the process of democratic transition” in the Ministry of Justice. And to create from there an independent judiciary that had never existed in Tunisia.
Despite some resistance that could have meant a step backwards, Llorente believes that civil society will not let that happen: “They are very aware of their rights, I think it is very difficult that they could now give up something that has cost them a lot to achieve”. An enthusiasm that reminds him of Spain a few years ago.
EuroMed Justice IV is also committed to improving judicial systems. In this case, in the southern region of the Mediterranean. Algeria, Egypt, Israel, Jordan, Lebanon, Libya, Morocco, and Syria are working together with the Spanish and French Ministries of Justice to create an efficient, democratic system that respects human rights and is consistent with international regulations .
In its fourth phase, the project is also part of the EU’s neighbourhood strategy. Most of these countries are included in the European Neighbourhood Policy, which was revised precisely in the context of the Arab world revolutions to provide better support in their democratic transitions. After all, its main objective is to strengthen relations with neighbouring countries in the community space, based on common values – democracy, human rights and the rule of law – and to promote greater economic integration, mobility and stability.
Relationships that, in the case of EuroMed Justice IV seek a necessary international judicial cooperation, according to Victoria Palau, coordinator of the project. “There are problems, such as terrorism, cybercrime and human trafficking, that, if not resolved at the regional level, are impossible to address,” she says. In this context, the project witnessed the first declaration of collaboration between European public prosecutors and the Mediterranean countries, to work together to address these problems.
Judicial cooperation is also one of the components of the project for the application of the Rule of Law in the Horn of Africa and Yemen, the objective of which is to fight against security threats. In particular, it works to improve the capabilities of the intelligence services, the security forces, and the prosecutors and courts.
Eritrea, Ethiopia, Kenya, Somalia, Sudan, South Sudan, Uganda, Yemen and Djibouti are the countries that benefit from this project funded through the Instrument for Stability and Peace (IcSP). What happens in these countries, even if they are not included in the neighbouring region of the EU, does affect the continent.
In addition, it is an example of how terrorist groups take advantage of moments of political instability to act. “When there is a power vacuum, these groups always try to sneak in with more or less success,” says Javier Vega, project coordinator. In the end, terrorism is an increasingly global threat with an important focus in this geographical área.
The key is to act regionally so that it does not spread to the rest of the world. For example, by controlling the territory as is also done in the Sahel region – through the Rapid Action Groups – and in Niger, more focused on illegal immigration.
The European Security Agenda underlines the need to take measures to deal with this threat in a more effective and comprehensive way, including the international community and cooperation projects. One of the latter, also managed by FIIAPP, focuses specifically on the fight against terrorism in the MENA region (Middle East and North Africa).
Work that, according to Mariano Guillén, director of the Justice and Security Area with FIIAPP, also seeks to “strengthen the political dialogue within the Arab League”, to favour cooperation among the countries of the region. Morocco, Algeria, Tunisia, Libya, Egypt, Jordan, Lebanon, Iraq, Syria and Palestine are the countries that, despite their political, economic and social differences, work to find common responses to terrorism. “The terrorist threat does not distinguish the levels of development in the countries and it can only be attacked through cooperation,” says Mariano Guillén.
The instability of the changes leaves room for security threats that do not recognise borders. But the same changes are necessary if we see them as an opportunity to improve, as a good time to draw on similar experiences while working together on those problems that affect us all.
01 March 2018
Posteado en : Entrevista
Andrés Mahnke, National Defender of the Chilean Public Penal Defender and General Coordinator of AIDEF, talks about the challenges in the region and the projects which are being undertaken with the support of the European Union financed EUROsociAL+ Programme.
Public Defender’s Offices are key stakeholders in Latin America, for guaranteeing access to justice for incarcerated people and ensuring that they can exercise their fundamental rights. What are the main challenges to ensuring that the region’s Public Defenders are able to exercise an effective public defence?
These fall under three categories. Conceptually, although it may initially seem contradictory, Public Defence is not a support service for poor people. It is the representation of the legal protection that the State must guarantee as a basic right. Presenting it in any other way allows the State to shirk its responsibility and directly affects equality before the law, especially for the most vulnerable.
The next dimension refers to institutional aspects. The technical independence of defenders and the institutional autonomy that ensures this independence, funding, resources for hiring and training, salary equivalence with the other parties involved in the system, the capacity and funding to conduct in-house research, the provision of infrastructure that allows clients to be assisted in a suitable manner and information technologies that ensure a defence on equal terms with criminal prosecution.
Finally, the qualitative dimension aims to ensure defence standards and a system that monitors compliance with them. Public Defenders in the Americas and the Caribbean have made significant progress in this regard through AIDEF. If we did not take this aspect into account, we would be providing lawyers who would have no way of effectively representing the interests and rights of the defendants.
The EUROsociAL+ action in the area of justice is oriented towards expanding and strengthening the coverage of the assistance services provided by Public Defender’s Offices in order to humanise and dignify attention to people in vulnerable conditions. Which vulnerable groups face the greatest obstacles to accessing justice due to the limited recognition of their status?
The situation in Latin America shows us that native peoples, migrants and the prison population are the most vulnerable when it comes to their dignity and rights. The same is true for young people, women, especially those who are in prison, the LGBT population, and disabled people.–– All of them are linked by the main factor involved in vulnerability and discrimination, poverty.
At the regional level, EUROsociAL+ works in close collaboration with the Inter-American Association of Public Defenders (AIDEF), supporting progress in building common strategic reference responses and frameworks for regional public policies, the adoption of joint agreements, declarations and guidelines and the development of protocols or other common products. What is the added value of networking for the Latin American Public Defenders?
Firstly, defending the full validity and effectiveness of Human Rights and the guarantees recognised in international agreements on the subject, which is also one of AIDEF’s objectives. Acting together in a coordinated manner has a real impact on debates that it would be difficult to sustain in isolation. It allows a permanent, inter-institutional system for the coordination and cooperation of Public Defenders to be established with the aim of raising the standards of each individual defence system.
Finally, acting as a network within the framework of the Inter-American System for Human Rights notably increases the leverage of the defence institutions that succeeds in lessening the structural deficiencies that many of them have.
We are currently working with AIDEF on diagnosis and action guidelines for Public Defenders in cases of institutional violence so as to respond to cases of torture or institutional violence in prisons. According to recent diagnoses, despite the fact that more than 30 years have passed since the signing of the International and Inter-American Conventions to prevent and sanction torture, there are still major challenges in Latin America when it comes to institutional violence. Do you think that the general public in Latin America is aware of the scale of the problem of torture? How could this issue be tackled in the work done by Public Defenders?
This is a profound issue. After successive dictatorships in the region, it has been difficult to deal with serious human rights violations in democratic governments, whether that is identifying them, confronting them or even calling them by name, as it is the case with torture.
It is undoubtedly an issue on which we have taken the lead because the most frequent cases of institutional violence and torture occur at the two ends of the criminal justice process. At the beginning, following arrest, on police premises, and at the end, after a prison sentence has been handed down, in prison.
Through the projects we have carried out with EUROsociAL+ we have managed to position the issue, with the incorporation of the debate in the Inter-American Human Rights System (SIDH), through the General Resolutions of the General Assembly of the Organisation of American States (OAS) and plenary hearings of the Committee on Juridical and Political Affairs of the same institution, among other instruments.
All this has allowed the subject of imprisonment and its consequences to permeate the internal debate, along with the excessive use of provisional detention (whether as punishment in advance or as a social control mechanism), imprisonment as a central element of sentencing in the region, and in particular the institutional violence and torture in prisons that occur under these circumstances.
Finally, given the diversity of the actors involved in the area of justice and the fact that these are multi-dimensional problems, what mechanisms/instruments could be set up to improve inter-institutional and inter-sectoral coordination to implement access-to-justice policies?
Rather than creating or implementing new mechanisms or instruments, what is needed in Latin America at the moment is to consolidate and improve the existing channels to bring about good inter-institutional coordination. Strengthening the work between institutions in the area of justice and training the participants while promoting collaborative working.
This is because one of the problems we face is a lack of trust in the institutions of the justice system, not only on the part of the public, but also from those who are involved in the system.
María Luisa Domínguez, Senior Technician in Democratic Governance in the EUROsociAL+ Programme
28 July 2017
Posteado en : Entrevista
We talk to Inmaculada Aguado about her work in the Ministry of Justice supporting the international cooperation projects managed by FIIAPP
Inmaculada Aguado is the Head of the Support Unit for the Director General of International Cooperation in Spain’s Ministry of Justice. Her collaboration with FIIAPP goes back a long way, since 2005. Up to now she has been responsible for coordinating numerous justice-related international cooperation projects managed by FIIAPP.
Currently her work is focussed on a wide variety of tasks of an institutional nature, such as preparation for visits by foreign delegations wanting to learn about the Spanish experience in the context of justice, negotiation of collaboration agreements with other countries, as well as coordination of the Ministry of Justice’s participation in international projects.
What is the work of the Ministry of Justice in international cooperation?
When we speak of international cooperation in the context of justice, it’s important to differentiate very clearly between international legal cooperation and international development cooperation. With respect to the former, international legal cooperation, it should be noted that legal assistance between countries is essential in a globalised world in which court proceedings increasingly have an extra-territorial component and, therefore, require the collaboration of various countries’ authorities for the prosecution of criminal suspects.
And with respect to international development cooperation, this involves the participation of the Ministry of Justice in justice-related projects with countries with which we have very special relationships. These projects may have very distinct purposes: supporting legislative reforms of criminal codes; the training of judges and prosecutors; the modernisation of justice systems; the creation of courts specialised in certain subjects, such as gender-based violence, etc.
What is the relationship between the Ministry of Justice and European Unión External Action policies?
At the Ministry of Justice of Spain, we follow the guidelines given to us by our Ministry of Foreign Affairs and Cooperation, which in turn aligns itself with EU External Action policies, and we support the strengthening of the rule of law in the countries considered high-priority for Spain. These includes the Ibero-American countries, European countries that aspire to EU membership (the Balkans and Turkey) and the countries whose stability is in our interest, such as those of North Africa, as they are our southern neighbours, and our security depends on their stability and development.
What matter do the justice projects that FIIAPP collaborates in address?
Currently the Ministry of Justice is participating by leading two Twinning projects with Tunisia and Turkey.
The project with Tunisia’s Ministry of Justice aims to support that ministry in adapting its organisation and operations to the new challenges it is facing, as following the 2011 Revolution it must enact reforms that affect the rule of law following approval of the Constitution of 2014.
We also have another project with the Turkish Ministry of Justice and legal profession to support them in improving their public defence system, in which we are also collaborating with the bar associations of Barcelona, Madrid and Valencia.
Both projects include the participation of ministry employees, judges, prosecutors, justice administration attorneys and lawyers who travel to Tunisia or Turkey for a week to work and share good practices with their Tunisian and Turkish colleagues. We implement these projects in collaboration with other countries, in the case of Tunisia with Italy, and in the case of Turkey with Lithuania and France.
In the time you have been collaborating in this type of projects, have you seen an evolution in cooperation projects?
Cooperation projects are becoming increasingly ambitious and in, the case of those I typically handle, these are projects that aim to support institutional changes in the countries where we work.
To contribute to real changes, the Spanish experts hold positions of responsibility in the corresponding institutions in Spain, as justice ministry professionals are the people who know how to propose improvements to other countries because they have had to make these reforms. And so they are increasingly asking for more specialised people who know their technical working area (for example, judge training) and also have certain skills for working in different cultural environments and often in another language.
What are the challenges facing justice in a globalised world?
In a globalised world in which borders no longer exist, not even for criminals, justice administration faces the challenge of finding new mechanisms for fighting new types of crimes, such as cybercrime offenses, as well as those associated with organised crime and terrorism.
To combat these crimes, harmonisation of legislation is necessary, a task that corresponds to the justice ministries, but also collaboration between all professionals working in every part of the criminal justice system, whether at the operative level, through police investigation, or in the prosecution phase, which is the responsibility of prosecutors and judges.