In October 2005, the Chilean government launched the new family courts. The new tribunals were the second major judicial reform that Chile’s executive power supported and it was a huge failure. The system collapsed after a couple of months, and in the beginning of the 2006, the executive branch called for a group of academics and experts to elaborate some kind of response.
After years of problems the authorities arrived at identifying the main problems, and because of that in September 2008 a new bill was enacted, containing modifications to the family law system. Also, the Supreme Court of Chile elaborated an internal regulation in other to fix the main practical issues. At the beginning of the 2010 some people started saying that the situation was settling down.
The report’s goal was to check in the real world of the operation of the family law system whether this last asseveration was true. The information that the report elaborates on was obtained through the observation of different hearings; interviews with judges; administrative support, legal aid lawyers and private attorneys; and through statistical data produced by the Administrative Corporation of the Judicial Branch.
The findings of the report are presented in relation to two criteria. First, we examine from a management perspective the performance of the family courts. Then we focuse on the quality of the system’s response, using two indicators: a) satisfaction of due process guaranties and b) the improvement of the information that the judges used to produce its ruling. These two indicators were the main arguments that supported the change from a heavily written legal procedure to a hearing system in the first place.
From the management perspective a clear improvement of the functioning of the system was achieved. The available data shows that the time between hearings was reduce considerably and some tools of case management were introduced in order to allow the schedule of the courts to deal with simple as well as complex cases. The role of the administrator of the court was vital in this context. In practical terms the waiting time was reduced and the system was able to finish almost every case that was presented in the same year.
A different story must be told from the quality perspective. The role of the judge as a gatekeeper in the pre-trial hearing was inexistent. Problems concerning due process guarantees were common: lawyers were not able to cross-examine witnesses for more than 4 to 10 minutes; minimal requirements concerning the right to an effective defence were not met, such as timely access to the other parties’ briefs and evidence or expert witness. The trial was divided in infinity of small time hearings, some times with different judges affecting the quality of the information to construct the sentence.
The report elaborates in depth on these issues, explaining the internal workings of the Courts and the multiple problems that affect the hearings.
Available at: http://works.bepress.com/claudio_fuentes_maureira/14/