Peru

Herausforderung Informationsgesellschaft:
Die Anwendung moderner Technologien im Zivilprozess und anderen Verfahren

Peru

Gefördert mit EU - Mitteln aus dem GROTIUS Programm

Dr Carlos Parodi Remon:

CHAPTER I

THE PROBLEM OF THE JUDICIARY AS HISTORICAL ANTECEDENT TO THE COMPUTER AGE

1.1 THE LACK OF A GOOD APPLICATION OF LAW:

We have considered necessary to begin this Chapter pointing out the main problems that have made of the Judiciary, an institution with little prestige before the hard critic -with good basis- and the Peruvian citizen's judicious look.

The Judiciary is the organ dedicated to solve conflicts of interests and the juridical uncertainties, such as the current Constitution of 1993 disposes it in the article 138§, first paragraph, the same that punctually says:

Article 138§. - The power of administering justice emanates of the people and it is exercised by the Judiciary through its organs, hierarchical organs with arrangement to the Constitution and the laws. (...)

It is based on this article that we can affirm that all society has necessity to solve the existent problems among its members, looking for the balance, obtaining something that for Law corresponds to each one; in others words, the search of justice is a basic necessity as Hortensia Vaz and Edgardo Dall`Aglio express it:

"In all the times and in all the ages the notion of Justice has played a decisive role in the relationships among men. Justice is an individual feeling, but also a social quality that consists on giving to each one its rights. Moreover, Justice is an universal feeling through which the right is recognized by all men of the society. The bond among that universal feeling, and the form through which is exercised is the Service of Justice".

In Peru, the protests of the citizens who many times didn't find in the Power Judicial solutions to their conflicts were daily listened; long processes - that many times took years - for those that should pass for finally to meet with a bad application of the legislation. Evidently, was due to the lack of improvement in the juridical study by those who should apply the Law and grant a solution to the dilemma with it.

However, nowadays, this problem is overcoming, because an Academy of the Magistracy exists and takes charge of qualifying the magistrates to fulfill its functions completely. The current Constitution disposes in this way:

Article 151§. - The Academy of the Magistracy that is part of the Judiciary, takes charge of the formation and the judges's training and fiscal in all its levels, for the effects of its selection. (...)

This Academy of the magistracy has understood that the juridical knowledge are not only matter of its competition, but rather that all magistrate should be prepared in the diverse areas and fields, mainly, in the COMPUTER SCIENCE field, since it will be from this moment, an important help that will facilitate his work; for that reason, the Academy is already qualifying the judges in the knowledge of diverse computer programs, teaching them the handling of the same ones, even, the handling of INTERNET.

1.2 THE EXISTENCE OF TEDIOUS PROCESSES:

The Judiciary in order to solve the cases that were interposed before it, had a series of processes; with regard to the civil field, these processes were governed by the repealed Code of Civil Procedures of 1912.

These processes, added to other problems, made of each case a history without end, because all these had a beginning date, but never and ending date.

"The chronic shortage of material means, the insufficiency of personal, the lack of organization, without forgetting the necessity to face the procedural reformation, have been increasing the problems of Justice (...), in such way that it has arrived to a limit situation that is necessary to overcome if we desire to consolidate the true right state".

At the present time, this problem has been overcome with the giving of a new Civil Procedural Code that allows the celerity of the processes, since it is governed by the procedural principles of celerity, procedural economy, concentration and preclusion.

Also, it is necessary to mention that the Code of Civil Procedure of 1992, admits as probatory means the contained documents in magnetic supports as well as computer means in its entirety; admitting in this way the technological advance and its importance in the social development.

1.3 THE PROCEDURAL LOAD:

We could assure that this has been the main problem that has contributed to the inefficiency in the administration of justice; Dr. Julio N£¤ez Ponce, very wisely comments:

"The jurisdictional and administration works in the Judiciary generates an enormous volume of data, those that, when are treated in manual form, they surpass the capacities of the jurisdictional and administrative dependences, originating delays and accumulations that attempt against the opportune Administration of Justice".

It is evident that the procedural load advances every day and that it is not enough creating new judicial districts and with it, to increase the number of tribunals; the real point to which we should attack is exactly the treatment that should be given to the great quantity of information that every day enters; nowadays is not enough, treating it manually; we should look for to store it correctly, occupying small spaces that in turn allow us to conserve that information without being damaged or altered. Everything can be found in the help that the computer science offers to us, because it allows us to store great quantity of data in the memory of a computer. The hard disks, with a wide memory and the disks that allow us to keep backups for security, are with all certainty the best solution, that although, they won't reduce the procedural load - because always will exist conflicts to solve - they will allow us to give an appropriate handling to the great quantity of existent information.

CHAPTER II

THE COMPUTER SCIENCE AS SOLUTION

2.1 CURRENT IMPORTANCE OF THE COMPUTER SCIENCE:

The COMPUTER SCIENCE as the most modern, powerful technical tool and revolutionary of the age, bound to the development of the communities; and the LAW as the oldest experience in the human community bound to the SEARCH OF AN ORDER (among the men and of the men among the society); they can play together the most effective role to respond, to the demands of legal and judicial reevaluation that the development of a civil and ORDERED society under the justice, nowadays claims.

As expression of development the JURIDICAL COMPUTER SCIENCE, generates expectations in the search of solutions to juridical and judicial problems. Calling for observing hopes to maintain the order and the law, the search of peace, justice and development, ask for fundamental steps to walk on realities in the march with the life and the cultivation of civilization.

We've liked to begin this paragraph making reference to the importance of the computer science interrelation with the Law, because in fact, the use of the same one allows to the appliers of the Law apply it with bigger speed and effectiveness, avoiding the routine and the waste of time in aspects that become repetitive.

Roc¡o Ronidenel describes this relationship obtaining some important concepts that reflect the importance of computer science in the Law:

"We can consider that the Juridical computer science is an instrumental discipline, of technical character that develops the rational and automatic treatment of the information of juridical content."

Juridical Computer science definition contains some important concepts:

	The juridical computer science considered as instrumental discipline comes to be a technical support that facilitates the intervention of electronic machines for the treatment of the juridical information.
	The rational treatment of the information supposes the understanding of the Law as specialized language which for its automatization requires previous treatment or rational processing. It supposes, the application of analysis, organization, classification and systematizing techniques for juridical information.
	The juridical information constitutes the raw material for the professional activity of the juridical operators who permanently are accessing to information. The voluminous character of the juridical documentation facilitates its automatization.

Then, the application of the Computer science to the Law, mainly in the procedural and jurisdictional activities, it allows us the quick and orderly access to the juridical information.

2.2 THE FIRST EXPERIENCE - THE JUSTICE PROJECT:

The Computer science application, at the beginning, to be properly applied in the administration of justice, it looked for to incorporate a system of information that helps to humanize the judge's work; in other words, a system of information that transforms the day of judge's work into a program already established, the same one that would cover the activities bound to their jurisdictional function.

For that reason, it was created the Justice Project, the one that was financed by the Program for Development of the United Nations and with the collaboration of the Supreme Court and the support of the Lawyers Organization of Lima whose objective was facilitating the entrance of the Computer science to the Administration of Justice.

It was required that this system was able to carry out diverse tasks, keeping in mind the following ones:

	It should be able to support the routine operations referred to the decisional part; in other words, the ability to help in the different types of resolutions, those can be orders, decrees and resolutions. It would not imply that will be the computer the one decides but that patterns can be used containing the repetitive information.
	It should allow the pursuit of the judicial processes that are carried out in the different instances within the civil area.
	It should report to the Supreme Court about the operation of the different services that constitute it, and also about the situation of the elements that intervene in their operation.
	It should substitute, little by little, the manual mechanisms of documental procedure, notifications and others of support, for a new on-line computer system.

Since the judicial apparatus is quite wide, a specific objective was needed in which apply the project, for that reason the civil area was chosen and inside it the project of administrative management.

Another objective of the Project was carried out the procedural and administrative reformations, since it was evident the inefficiency of the norms in that time. Thanks to the Justice Project, it was proven that the Computer science application in the Administration of Justice was not only possible, but, indispensable.

This project observed two aspects:

A) A Training plan:

To qualify the magistrates, judges and judicial assistants; as well as to the whole support personnel in the handling of this system and of diverse computer programs.

B) Study of system operative auto maintenance:

Given the lack of resources of the Judiciary, this system has a subsystem of services that once implanted will be able to generate a necessary earning that will maintain the operability of the system.

Thanks to the subsystem, the available information in the system will constitute an information service to the public; either information on the state of files; statistical information on the number of files; information on the content of the resolutions (notifications), etc.

In the case of the executorships a special database would be created concerning to the jurisprudence topic.

This system would be in each one of the civil locals pertaining to administration of justice, inside the ones known as the consultation centers. There will be an environment with several computer terminals and a printer; in this way the users or institutions will be able to use several consultation sessions at the same time, but only within the information that is allowed to them. Eventually it will be possible to obtain a printed copy of the consulted information.

All these services will be billed and paid in the consultation or in any event, loaded to the current account of the consultant. The rates will be determined based on diverse factors, such as the type of information to consult, the printing type, etc.

When beginning the consultation session, first the system will verify the revision of user's statement of account, pending debts and its limit of available credit, in the event of the user decide to load in his account. Then, it will be given the access during the time requested by that client.

It is looked for that later on this system will be connected to juridical studies, Lawyers' Organization.

The Lawyers' Organization of Lima would also render its services through this system, giving a database with the list of active members; service of consultation of the file through the Organization; service of consultation of investigations, for institutions, etc.

It was concluded that this project, through its operation in the admission points and distribution of processes, required of an organism that becomes responsible for the execution of this functions, proposing the creation of a Documentation Center of the Judiciary.

2.3 ANOTHER PROJECT:

In 1992, the "Universidad Nacional Mayor de San Marcos" presented its project named JURISA (Project for a cybernetics Reception Desk) that planned the automatization of the judicial administration starting from the Reception Desk, also looking for the pursuit and automatic control of the judicial documentation.

It was looked for that, in an initial step, this system allowed at a first moment, familiarizes the judicial personnel with the use of computers, so that in this way, by means of this previous training, a favorable environment can be created for the later application of computer science.

Then this system would be applied in the first stages of the judicial process, either the same Reception Desk and later on, it will be applied to the judicial file and the pursuit of the same.

The last stage consisted on the total input of the file to the computer, it would include the applying of computer documents concepts.

CHAPTER III

THE COMPUTER SCIENCE IN THE ADMINISTRATION OF JUSTICE - CIVIL AREA

During the last years, Peru has begun a series of reformations that include the economic, administrative and juridical field. In this last field, is where we find precise changes; changes that concern not only to the application of a new legislation, but, to the computer science introduction as a tool of help to the Law.

The administration of justice is the organism that shows us clearly the computer science importance as development instrument and modernization in the Peruvian judicial system. For that reason its application in the civil area.

3.1 CURRENT USE OF THE COMPUTER SCIENCE IN THE CIVIL FIELD OF THE JUDICIARY:

A) In the Judiciary, the computer science is already used; when entering to the Palace of Justice we can appreciate a terminal that offers us information about how the Judiciary is constituted, both its administrative and judicial organs. The Lawyers' Organization appears attaching a list of the registered lawyers. Here the multimedia is used, because we can appreciate drawings and listen a background music.

Definitively, the project of data processing pertaining to the Judiciary has begun.

With this purpose it has been proven for Administrative Resolution 110-94-CE-PJ the Project for data processing of the Judiciary that consists of nine chapters and three annexes whose total cost ascends to US $24,305,372 including the contribution of the Development Program of the United Nations for US $390,000 with a term of three year for execution. It is authorized, also, the subscription of the Agreement (Project Document) with the Development Program of the United Nations (PNUD), for the execution of the Project of Data Processing of the Judiciary.

B) Also, we find the use of a Unique Reception Desk at this moment, applied to the civil courts, where anyone presents their demand and the computer will direct this to a certain tribunal. The applied program is the CLIPPER, presenting in the input screen the identification data of the parties, matter, dates, claim, and relating data to the lawyer (names and identification code in the Lawyers' Organization).

The old method was referred to the calls Turns where each tribunal entered on duty a certain week and during that week it received demands that were seen by this tribunal. This brought many problems; the first one referred to the procedural load, because a tribunal sometimes received more demands than other; the second problem was that it allowed the lawyers to know who were the flexible judges, and then, they presented their demands before them to obtain a better result; or they presented the demand before a judge friend and this then would assigned the shift date. The Unique Reception Desk help to avoid this type of immoralities.

We could say that the system of unique Reception Desk is still a pilot program, because its application is only given in Lima.

C) The automatization of tribunals has allowed the beginning of projects dedicated to the use of computers in tribunals. In the civil field it has been applied in the First Civil Specialized Tribunal of "Cono Norte" (North Part). There it has been settled a system of automatized registration of files for the input, update and control of the judicial documentation, it has been created the electronic calendar and the standardization and normalization of such repetitive documents as resolutions, occupations, etc.

3.2 THE COMPUTER SCIENCE AS A BASE OF THE CURRENT REFORMATION OF THE JUDICIARY. - MAIN CHANGES IN THE CIVIL AREA:

The Course of Specialization in Administration of the Judicial Office, dictated by Catholic University (Universidad Cat¢lica) and later on, by the San Marcos University (Universidad de San Marcos) in coordination with the Executive Secretary of the Judiciary, outlined new changes to be applied in the administration of justice, with the help of computer science. These changes are:

3.2.1 JUDICIAL FILE STANDARDIZATION:

JUDICIAL FILE STANDARDIZATION: The standardization of the judicial file is looked for, since this contains and concentrates the process, because it contains all its pieces.

The first thing has been to divide the documents that contains the file in substantive documents and documents for procedure. In the first ones we find to decrees, sentences and records; the second ones contain to the orders. With regard to the writing that present the parties, the judge when receiving them always grants a interlocutory order; these documents will understand each other as substantive or for procedure either depending on the resolution that is granted, a decree or an order or the sentence.

With this, the judicial file will be organized in a different way, dividing it in three sections:

Corresponding to the substantive documents of the process.
Corresponding to the procedure documents of the process.
Section in which the incidents notebooks will be filed, if there was necessity of them.

The numeration of the file is even different, because the number to assign will be an unique number that will accompany to the file from its reception until its end, in all the instances.

This new numeration is composed by diverse fields constituting the set of them the file Code that will be unique even at national level, it should be managed the total of fields as a whole. For example:

	The file code will be: AA-NNNN-BBCCDEFF
	Where: AA is the judicial year NNNN is the correlative one, the input number file BB is the code of the judicial district CC is the province code inside the judicial district D is the jurisdictional organ E is the specialization of the tribunal that manage it FF is the tribunal or room number

3.2.2. TAKE REASON BOOK STANDARDIZATION:

With the purpose that all the jurisdictional organs of the country have a take reason book similar and for all the specialities, this has been designed with the data fields necessaries to complete the objectives that are looked for, making responsable to the one in charge of Reception Desk with regard to their proper filled and updating.

It is provided that the book has an unique format applicable to the whole jurisdictional organ. The book has the general data of the jurisdictional organ, the format of the registration Take Reason and a Sheet for enlarged relationship of justiciable.

3.2.3. MODEL OF DOCUMENTS:

In all the processes are generated a great quantity of documents, which are very similar, varying only some data like the name of the parties, the citation date, etc.

With the purpose of reducing the work of the document elaboration and of giving uniformity and agility to the emission of these, it has been carried out models or documents patterns of more frequent use in all the specialties.

These formats are formed of three parts:

	In the first place, the format in which appears the fixed text and a variable text. The variable text has been identified with a number of three digits preceded by the letter V, being able to be replaced, for names, addresses and other data of the parties of the process or for a date and hour of citation.
	Second, the description of the variables to be replaced is presented.
	Third, an example is shown in which the variables have been replaced simulating a hypothetical case.

BIBLIOGRAPHY

BALAREZO DE VELOZZI, ISABEL
"Antecedentes y Situacion Actual de la Inform tica Jur¡dica en el Peru" (Antecedents and Current Situation of the Juridical Computer science in the Peru)
In: "Revista Peruana de Derecho de la Empresa" (Peruvian Magazine of Enterprise Law): Law, Juridical Computer Science and Enterprise. Lima, Asesorandina, 1989, pp. 178
NU¥EZ PONCE, JULIO CESAR
"Derecho Inform tico - Nueva Disciplina Jur¡dica para una Sociedad Moderna" (Computer Science Law - New juridical discipline for a modern society)
Trujillo, Of. Marsol, 1996, pp. 366
RONDINEL SOSA, ROCIO
"Inform tica Jur¡dica. De la teor¡a a la practica"
(Juridical Computer Science. From the theory to the practice)
Lima, Editorial Preai, 1995, pp. 128
VAZ FLORES, HORTENSIA and DALLïAGLIO, EDGARDO
"Inform tica y Administraci¢n de Justicia"
(Computer Science and Administration of Justice)
La Plata, Editorial Platense, 1986, pp. 144
Book of the Specialization Course in Judicial Office Administration
Universidad Nacional Mayor de San Marcos and Secretaria Ejecutiva del Poder Judicial (Executive Secretary of the Judiciary), 1996

Herausforderung Informationsgesellschaft: Die Anwendung moderner Technologien im Zivilprozess und anderen Verfahren