Case study: Open Justice in Buenos Aires

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Updating Democracy // Rebooting the State

11 min readApr 15, 2021

This article was written by Rose Head

‘Democratic governance is undermined where access to justice for all citizens (irrespective of gender, race, religion, age, class or creed) is absent. Access to justice is also closely linked to poverty reduction since being poor and marginalized means being deprived of choices, opportunities, access to basic resources and a voice in decision-making. Lack of access to justice limits the effectiveness of poverty reduction and democratic governance programmes by limiting participation, transparency and accountability’
- Access to Justice, UNDP, 2004

Introduction

It is estimated by the Task Force for Justice that 5.1 billion people fall into ‘The Justice Gap’, those who cannot access justice, of whom the majority are women and children, disabled people, poor people, and people from ethnic minorities. Also revealed was the grave truth that global justice systems — the judicial and legal structures, their protocols and processes — are a contributor to these inequalities, and the justice gap cannot be closed by focusing justice reform on traditional approaches, tools, buildings and institutions, nor individual cases. Instead, structural and systemic problems must be targeted and transformed, what the Task Force call ‘a transformation in ambition’.

Justice reformers around the world are starting to transform justice systems. On the international level, there has been a commitment to Sustainable Development Goal 16, which seeks ‘peaceful and inclusive societies’ and ‘access to justice for all’; and point 16.7 states specifically to ‘ensure responsive, inclusive, participatory and representative decision-making at all levels’. Access to justice and legal empowerment enables people and communities to advance their rights, push for legal and regulatory protection, shed light on corrupt practices and effectively participate in governance processes — essentially helping to build fairer societies. The effective implementation and positive experience of trustworthy justice systems has also been shown to create more peaceful and prosperous societies.

The open justice movement

One of the key transformations is open justice: open government principles of public accountability, civic participation, and transparency, applied to the justice system. At its heart are tools and processes that put people at the centre, to create justice systems that deliver solutions to the justice problems that matter most to people. These include: opening justice institutions to make them more transparent, accessible, and free of corruption; legal empowerment to ensure that all people and communities are able to understand, use and, ultimately, shape the law; using people’s justice problems to create better justice journeys; supporting people to seek solutions; providing people with access to quality justice services (one-stop shop and tailor-made); and increasing participation in justice.

While the number of justice commitments in OGP action plans continues to grow, there are still too few justice-related commitments overall. One part of the world where there has been growth of justice-related commitments is in the Americas. Here we take a look at a specific case from Argentina, that of Criminal Court no.10, in the city of Buenos Aires — a pioneer tribunal in the open justice movement. As Criminal Court no.10’s Secretary, Pablo Hilaire states, ‘the judicial must provide reliable and secure judicial data and offer citizens and stakeholders meaningful opportunities to participate and collaborate, bringing perspectives from different fields and strengthening accountability.’

Case Study & Analysis: Criminal Court no. 10, Buenos Aires, Argentina

Of the many challenges with justice systems today, lack of trust from the community towards the judiciary is a key issue that Criminal Court no.10 has been attempting to tackle. The court in Buenos Aires, led by Judge Casas, has been pioneering an ambitious ‘transparency initiative’ which, as Mr Hilaire states, sets out to “share and give access to our daily work to regain trust. Show that there are many committed individuals working in the justice system. We believe that the judiciaries in general need to be more open.” New tools and techniques have been used to create transparency and collaboration, increase the trust between civil society and the judiciary, and trial digital technologies in favour of open justice.

Central to this initiative is the concept of ‘open information’, and the court has taken several radical steps to better share the courts data. Information and data assimilated and produced by Criminal Court no.10, has been collected and shared through a public Twitter account, since it allows access without the need to create an account. Every ruling and decision is published on the open data repository, with all sensitive data removed to protect personal data privacy. Sharing the complete calendar of the court, is also seen as an essential part of opening up the path for people to participate and better understand their local Tribunal. By continuously publishing the forthcoming court hearings, it invites people to participate and observe the proceedings.

open data dashboard of Criminal Court 10 https://juzgado10pcyf.github.io/#/en/resoluciones/2021

Firstly, the court set objectives and goals, which were published in an online Objectives and Planning Guide. The processes were then designed and documented in another public online document, the Procedure & Management Manual. With public engagement central to open justice principles, these documents are constantly revised and updated, as feedback mechanisms are key to ensure the effectiveness of open processes. This work relies on the use of an enormous amount of ICTs, which the judicial system has been slower than most sectors to take up. The Covid pandemic has helped cement their integration internally, as well as allowing for an increased engagement with the public, utilising new ways of digital connection.

The court has implemented virtual hearings, and the possibility of watching a hearing from the comfort of one’s home using digital tools has increased audience numbers considerably. There are two main concerns when you promote the use of technology in justice systems: the digital divide and a robust cybersecurity. Criminal Court no.10 has put in place protocols to help overcome these challenges, including contacting each participant to check they have the necessary secure infrastructure and information required for this type of videoconferencing, and through the creation of clear instructions on how to connect.

Whether virtual or in-person, establishing effective feedback mechanisms is key to allowing citizens to participate effectively, ensure necessary system enhancements, and increase the likelihood of participation in future opportunities. This increased citizen participation (and feedback loops) enables critical feedback to be provided, which enhances accountability and improves the delivery of justice. The transparency initiative has also encouraged different forms of citizen participation across a wider network, including attracting the attention of civil society and their services, which help to widen the scope of the initiative; for example, a contribution from a web developer used an open code dashboard to make the data more visible and understandable.

Mr Hilaire says that the greatest impact has been, “the use of plain language in all our decisions. As well as rearranging the design of citations and documents so that there are more comprehensible to everyone. I believe we cannot talk about being open, if we don’t make an effort to speak and write in a friendlier and clear language.” The court initially monitored the the use of plain language by the Judge. This led to the production of a Plain Language and Style Guide, that lays out guidelines for more accessible and clearer language to be used both in spoken word and written court documents. It has subsequently been adopted by many judicial members and even used as the basis of a plain language initiative in Formosa Province judicial system.

Challenges to opening the justice system

When it comes to criminal case hearings, there are many potential challenges to ensuring fair justice. In criminal cases in particular, a fair and accessible hearing for robust debate is crucial, and therefore clear accessible language is critical; and when held virtually, feedback from all stakeholders involved must be gathered to make sure this is the case. With the NGO Democracia en Red, a poll was implemented to ensure the accessibility and effectiveness of hearings at the court. Technology, and the design of the system itself, must be held to account along the way, to uphold the principles of open justice. It is crucial that open justice comes with strong safeguards regarding the protection of personal data and the right to privacy.

The national Ministry of Justice and Human Rights, which leads Argentina’s Open Justice Program, has published primary data and other key information on more than 2.3 million criminal and 1.5 million civil justice cases, with all data published in a single open judicial data portal. The goal is two-fold, to increase transparency with judicial data, and to create an open and collaborative judicial network to allow the judiciary to have the data they need to best function. A difficulty with centralising so much disparate data is to make the data interoperable. In Argentina, a federal country, a common protocol and standard was agreed, achieved by initially signing a data agreement with every national and subnational higher judicial institution. The data portal thus contains data from, not only the ministry of justice but, the network of provincial judicial systems across the entire country in an open and comparable way.

Judicial data is too often seen as only data that is formed by the judicial branch itself, and an enormous amount of data is therefore overlooked which could be critical in producing fair justice. The belief that only lawyers can understand and work with data related to legal matters creates institutional lag. Open justice data requires interdisciplinary teams (including a wide range of people who didn’t go to law school), to support lawyers, judges and jurors to understand data in this new digital context; as well as to widen the set of ideas and values brought to the table as part of the justice process. Criminal Court no. 10 has shown that open judicial data is essential for justice innovation, and that with a robust and committed data agenda, it is possible to implement better policies, and rethink and reshape justice systems.

One of the main challenges to implement open government principles in justice systems is the extent of internal cultural change it requires in a sector that is used to being opaque and distant with society at large. Justice is also often epistemologically separated from political state structures, such as the ‘legislative’ and ‘executive’, as something that holds to account the political system and its participants. As such, many justice institutions and organisations do not consider open government practices a concern for the judiciary. Updating the state requires a coordinated approach amongst all levels and branches of the state, and therefore justice (and legal) systems must be held to account too, and be seen as part of an ‘open government’.

Technology must be used to support a fair and accessible justice system for all people involved in a specific context, and not add to inequalities. There are many unanswered questions, and related risks, regarding open justice and the embracing of new digital tools. For example, how do you

maintain openness when hearings and representation are conducted from increasingly private spaces? How would reporting procedures be separated and distinguished from the court procedure itself? Would these open processes create a dangerous divide between online and in-person hearings? And what happens when courtrooms become totally virtual? In May of this year, the first person was sentenced to death via Zoom, which has led to ethical debates about remote sentencing. In the Argentinian case study, a considered set of tools and processes have been applied to a specific context, and open government principles applied to the justice system to underpin the values of fair and equal access to justice for all.

Conclusion

The implementation of open government principles across global political systems is not a one-size-fits-all solution, and the judiciary is no different. A 2019 study by the UK Government’s Policy Lab, to explore the future of open justice in the UK, found that the majority of the 44 participants were resistant to opening up the justice system too much. In particular, the trial-by-media model in the US, where TV cameras are placed inside courtrooms, was not seen as desirable in anyway, ‘the justice system should never be a source of entertainment’. It also concluded that ‘the fact that there are barriers to accessing the justice system was often not thought to be a bad thing’, and there was ‘a high level of trust in the justice system, with few mentions of the need for trust and transparency.’ The level of mistrust in the judiciary is obviously highly context specific, and will vary enormously between countries, and between communities. According to Transparency International’s Global Corruption Barometer, ‘…in 2013 the judiciary was perceived to be the third most corrupt institution in the world”, although in 2017 “perceptions of the judiciary were more positive (…), still 30% of the respondents to the survey believed that most or all judges and magistrates were involved in corruption.’

Transformational systemic change is needed in judicial systems the world over to help close the ‘Justice Gap’. The ‘open justice movement’ could provide a leading open government model, with people and the use of the law at its centre, to advance justice. Criminal Court no.10 in Buenos Aires has shown an initial path to facilitate transparency, access to information and services, participation opportunities, and the implementation of feedback mechanisms to allow for constant improvement. Mr Hilare emphasises the need for ambition and urgency to create real transformation, “As a practitioner, I would say that the key is to be active and don’t wait for “the perfect time” or “the right framework”, we need bold people in public services. If you believe that your ideas and implementations will have a positive impact on people and the service you provide, go for it. Institutionalization will come when that positive impact arises.”

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