Actes de la conférence LVI04 Law via the Internet Conference, Paris nov. 2004
 

The Dissemination of Case Law in South America: The Rules of Heredia

The 5 November 2004, by Carlos G. Gregorio,

Professor Carlos G. Gregorio, Law Professor, Researcher at the Reseach for Justice Institute, Professor at the University of Buenos Aires, Argentina

The Dissemination of Case Law in Latin America: The Rules of Heredia

Carlos G. Gregorio
Instituto de Investigación para la Justicia Buenos Aires, Argentina

1. Introduction

In the past few years, the dissemination of legal documents on the Internet has increased greatly in Latin America. Parliaments and some agencies of the executive branch have allowed access to statutes and executive decrees, and some judicial websites also include access to statutes. However, the most innovative developments are offered by the official websites of the judiciaries, which have begun to spread full-text of judgments, case tracking information and legal notices -which in the past were only published in newspapers or required to be posted in designated areas at court. This paper analyzes the motivations for using the Internet and its consequences, in particular for the dissemination of case law, tracking of pending cases and legal notices. The discussion is focused on its impact on the judicial transparency, the public scrutiny of justice administration and the protection of intimacy, privacy and personal data.

2. Judiciaries websites in Latin America

The first developments of massive case law publications were a natural consequence of the court computerization -mainly by-products- and the high expectation of its capacity to solve court delays. However, the goal of the most recent massive disclosure of judgments is likely to aim at achieving transparency. There is clear evidence on Latin American and Caribbean law websites to support this statement: [1]
in several Latin American countries, (e.g. Argentina, Brazil, Costa Rica, Mexico), judiciary websites include a specific section about transparency containing: judicial budget, bids and purchases and procès-verbal of justices’ opinions deciding administrative matters;
websites provide public access to judicial proceedings;
iii) bulk publication of judgments, i.e. not indexed;
iv) non-anonymizated documents and search engines that allow finding persons;
v) access is free and open to all individuals;
vi) rare dissemination of legal notices, if any available, there are no search engines. [2]
Another possible explanation for such increase on publications is that a significant number of bills on "public access to governmental information" were proposed and passed in Latin American and Caribbean countries. An example would be a statute recently passed in Mexico that establishes: (i) public access to judgments; and, (ii) that judicial proceedings and records are classified. [3] But these initiatives mention “access” not “dissemination” which remains an open question.
In recent years, the federal, constitutional, state and labour courts of Brazil have launched powerful websites in greater proportion compared to any other Latin American country. The great majority of these websites have search engines to retrieve records in several ways, as full text, personal names of parties or lawyers, or case number. This is probably a result of the text editing facilities and of the level of computerization of the courts. Currently, judgments -and others judicial decrees- are automatically put online, while old cases judgments were scanned as images in order to be available for viewing. In some states, there are law websites that contain search engines that enable to search defendants or people deprived of freedom by their names. [4]
Another question that remains open in all websites is whether these websites contain all judgments or only a significant percentage of them. Normally, websites do not disclose the percentage of cases reported nor the criteria used to select or exclude certain cases.

3. Case Law Dissemination

Probably, the massive online publication of judgments in the judicial websites in Latin America implicitly addresses the public claims about obscurantism and volatility. Full text judgments publishing fulfills the transparency objective, but the problems of saturation are not adequately perceived. [5]
Consequently, the characteristics of the judiciary websites in Latin America and the Caribbean suppose two ways of access to judgments, viz. lists or search engines:

- Belize, Jamaica, Trinidad & Tobago and the Eastern Caribbean Supreme Court tend to use lists (without search engines); [6]

- Argentina, Brazil, Bolivia, Colombia, Costa Rica, Chile, El Salvador, Nicaragua, Paraguay, Peru, and Venezuela, tend to use search engines;

- in Bolivia and Peru, the decisions of the constitutional courts are accessible thought a search engine, in Ecuador through lists. In these three countries the Supreme Courts do not publish judgments.

While websites in the Dominican Republic publish only a selected number of the Supreme Court decisions, websites in Guatemala, Haiti, Honduras, and Uruguay do not contain any judgments at all.

In Mexico it is possible to access Supreme Federal Court’s rulings -called ‘theses’-, i.e. rules extracted from case law by judges. State courts publish full-text judgments only in exceptional situations. Also, the dissemination of case law in magazines is restricted mainly to the Federal Supreme Court. The UNAM (University of Mexico) has a selection of case law on its website. [7]

In some websites the judgments are anonymizated in cases concerning children or family conflicts (e.g. Argentina and El Salvador). However, there is clear evidence of cases that can be searched by using the names of the parties, victims or witnesses. That is the case of people with HIV in the Venezuelan law website, [8] and victims of family conflicts in some states of Brazil. [9]

4. Public access in websites to judicial proceedings

The greatest impact on the rights of intimacy and privacy is probably caused by the dissemination of judicial proceedings on the Internet. This spread is made through the publication of lists of filed cases, proceedings and hearings.

Daily lists of filed cases are published in some courts, for example in Argentina (commercial courts) and Ecuador (all jurisdictions). [10] These lists include the name of the parties (plaintiff and respondent or defendant) and the nature of the conflict. In Ecuador, criminal proceedings also include the victim’s name. These public records are downloaded and used by Credit Bureaux and Internet dissemination of criminal cases filings is questioned whether or not this disclosure affects the presumption of innocence, since the final judgment is not published. [11]

It is possible to track the progress of a case -for example- in Argentina, Bolivia (constitutional justice), Brazil, Chile, Mexico and Peru (constitutional justice). There are three means of access: search engines using the name of the parties, judicial decrees daily lists or case identification number, each one entail different impacts. Searching by name is predominant in Brazil except for Labour Courts’ websites, which expressly eliminated from their websites this possibility after having determined that this service was used by the employers to discriminate against employees who had taken legal action against their previous employers. [12] In Mexico, procedural data (decrees, orders or interlocutory decisions) are daily published by all state courts and these data include the name of the parties and the matter or offence [13] (and also the name of the victim in the state of Tabasco). [14] It should be pointed out the fact that the names of the parties have been eliminated from the website search in the state of Nayarit. [15] In Venezuela and in some provinces of Argentina the access is restricted to the parties or their lawyers.

Access only throughout case identification number could be a standard that satisfies an acceptable balance between access rights and protection of personal data, which is the case of civil cases in Buenos Aires, [16] and labour courts in Brazil. [17]

Some courts publish scheduled hearings, such as in Costa Rica and Panama; [18]] the issue with disseminating this type of information in criminal cases is publishing the defendants’ name, the nature of the offence and the victims’ name (e.g., in Panama). This problem is rather complex as citizens have a legitimate interest in all public hearings, but the cases are pending of decision.

6. Claims

There are some conflicts identified as derived from the spread of case law and judicial proceedings in Latin America. A woman in Chile brought legal action when she found by using her own name in the judiciary website the paternity investigation case of her daughter. The Court of Appeals of Santiago paradoxically rejects the request of confidentiality, [19] saying this dissemination and the Internet search engine are considered no different from print-outs which have always been available in court office desks. The Supreme Court of Justice confirmed this sentence on July 3th, 2001. [20]

In these situations the judicial branch has to solve cases against itself; another example is the case R.M.A. vs. Presidente de la Corte Suprema de Justicia y el Jefe del Departamento de Tecnología de Información del Poder Judicial about dissemination of paid credits in the judicial branch website, the Supreme Court of Costa Rica decides in favour of the plaintiff. [21] In some other cases, the constitutional panel of the Supreme Court of Costa Rica has decided in favour of the plaintiffs in numerous appeals against Credit Bureaux. [22]


7. The Rules of Heredia.

In Latin American judiciaries, some tension is perceived between U.S.A. and Europe regarding the protection of judicial personal data. [23] In the U.S.A. the general rule appears to be access and transparency. Nevertheless, however Latin Americans are surprised by way of dealing with exceptions to the rule, that restrict or forbid the access to legal information.
Meanwhile, there is discretion in matters of adoption, child custody, parental authority, mental and reproductive health; the parties need to request for the use of a pseudonym in the dispute. This fact has generated astonishment because of the growing number of cases in which the use of pseudonyms is approved. [24]

The anonymization of the sentences published in Spain; the Recommendation 01-057 of 29 November 2001 of the Commission nationale de l’informatique et des libertés of France; and the special category of judicial data (article 21) in the Codice in Materia di Protezione dei Dati Personali of Italy is viewed by Latin America as a greater protection of personal data in European countries.

These two lines of thought converge in Latin America as while judiciaries look forward demonstrating their independence and providing transparency in order to facilitate public scrutiny, some personal data protection laws of European inspiration have been passed (such as in Argentina, Chile, Ecuador, Panama, Paraguay and bills of Costa Rica and Uruguay). Other countries that have passed laws on access to public information still have not achieved to disseminate case law properly.

This represents an undeniable dilemma for courts, which have had the need to define some criteria, for example the Agreement en banc of Suprema Corte de Justicia de México 9/2003 of May 27, 2003 establishes (article 41) “final judgments constitute information of public nature and will be spread through any means, whether in writing or by electronic or any other means that technologic innovation make possible” and, (article 42) In order to respect the parties’ right to intimacy, personal data will be omitted when making judgments public, if these data constitute confidential information ... In other matters within this Supreme Court competence, which are not of criminal nor family nature, the right of the parties to oppose to the publication of their personal data should be indicated to them in the first decision which is pronounced, explaining them that the absence of opposition would mean that they have given permission to publish the judgment without omitting the personal”. [25]

Indeed, there are very few rules which specifically regulate the balance among access to judicial information, case law dissemination and personal data protection. “Purpose” appears to be the key word of this issue, which is defined in the European normative. This seems to be the basis for the Minimal Rules for the diffusion of the judicial information in Internet (Rules of Heredia) approved in Latin America in 2003. [26] For instance, two Mexican laws on access to information establish the obligation of defining and explaining the purpose of databases. [27] Moreover, Guatemalan Constitution establishes the citizens’ right to know the purpose for which personal data is collected. [28]

The main aspect of the Rules of Heredia is that their compilers have sought to reach a balance between the rights to privacy and intimacy and the right to access to public information, unlike the solutions given in other regions..

After the Committee of Ministers of the European Union Recommendations Nº R(95)11, [29] the Rules of Heredia seem to be one of the few instruments which have proposed a specific definition of purpose for collecting and disseminating judicial information. Purpose, as it is defined, is aimed at the administration of justice, including transparency to the extent that it contributes to improve independence and judicial performance. To define purpose (Rules 1, 2 and 9), three categories are used: judgments, case tracking information and legal notices, the lasts ones should become greatly widespread as they involve the right to defence.

The concept of voluntary public person is defined in these Rules, although it has been also defined in the 10th point of the Declaration of principles on freedom of expression, of the Inter-American Commission on Human Rights [30] and in some journalism ethic codes. [31] Nevertheless, it uses a more limited definition of public person than Californian case law. [32]

The adjustment of search engines to the purpose (Rule 4) has its source in the Legal framework for Information Technology Act (of Quebec, Canada), article 24 that establishes: “The use of extensive search functions in a technology-base document containing personal information which is made public for a specific purpose must be restricted to that purpose”.

The Rules of Heredia still do not have enough consensus among Latin American judiciaries, which despite having noticed they are facing a difficult problem, [33] know that an essential modification to several website access mechanisms should be made. Nowadays, very few courts follow strictly these rules: the Supreme Courts of Nayarit in Mexico (although they do not disseminate judgments), the province of Rio Negro in Argentina, which has explicitly embraced the Rules, and all Brazilian labour courts that have removed the name search from the case tracking system, but they still use it for searching of judgments. This contradictory scenario may exist in other Latin American countries with different nuances but still the same profile: websites that have gone too far despite judicial authorities’ decisions; legal gaps on personal data protection; and at the same time, a growing citizens’ demand for judicial transparency and intimacy protection.

Conclusions

The dissemination of case law and other judicial data has greatly increased in the past five years, in Latin America, but still seems to be just a result of technology incorporation. In the vast majority of cases there is not a Supreme Court decision defining contents and methods of access to information. [34] Furthermore, a declaration was approved (Declaración de Copán-San Salvador) in the recent summit of Presidents of the Supreme Courts of Latin America, Spain and Portugal, which emphasises the rôle of new technologies in justice administration, although there is no stress on the impacts on intimacy and privacy. [35]
The Rules of Heredia are currently a starting point to rationalize case law dissemination in Latin America but still do not have enough consensus. Conflicts with privacy and intimacy rights are just slightly perceived and claims against judiciaries are isolated, tepid and incipient. This whole scenario shows that in the following years, Latin America would be much more interested in new statutes concerning personal data protection and judicial policies for reaching a balance between transparency and informative self-determination.

Notes :

[1] . One counterexample are the thematic websites: e.g. about schools (www.fernandocarlos.com.ar), real state (www.legalph.com.ar) or personal injuries (www.ttlawcourts.org/digest_index.htm or www.iijusticia.edu.ar). This last case law website was developed following the Article 26 of the French Law of July 5, 1985 named “Loi Badinter”. The explicit purpose was to deal with the volatility of compensatory damages and to generate public and objective criteria for indemnifications. See Gladys S. Álvarez, Carlos G. Gregorio and Elena I. Highton, ‘Capacidad regulatoria de la difusión de información judicial’, in Internet y Sistema Judicial en América Latina (2004) 75-89, Ad-Hoc, Buenos Aires, (http://www.iijusticia.edu.ar/docs/a...).

[2] . One engine allowing search personal names in legal notices was developed for the newspaper La Hora in Ecuador, http://www.lahora.com.ec/busquedasj...

[3] . Federal Transparency and Access to Public Government Information Act, (June 10th, 2002). Article 8. ‘The Judicial Branch of the Federation must make public any judgment that has produced rulings or that has been executed; the interested parties may object to the publication of their personal information.’ Article 14. ‘The following will also be considered classified information: ... IV. Judicial files or administrative procedures that have taken the form of a trial, when there has been no ruling; ...’

[4] . Tribunal de Justiça do Estado da Paraíba, “Reus aguardando captura” [wanted defendants], www.tj.pb.gov.br/scp/index.htm and Tribunal de Justiça do Estado do Rio Grande do Norte, "Relação de Apenados" [people jailed awaiting trial or sentenced to prison], http://www.tj.rn.gov.br/home/vara_e... .

[5] . Saturation concept supposes the destruction of a coherent mass of decisional law by an inundation of “redundant precedent”, see Susan W. Brenner, Precedent Inflation, Transaction Publishers, 1992 that presents this scenario in the context of recent case law databases and analyzes the consequences of on-line publication and the passage from restricted publication to the publication of all decisions.

[6] Belize: http://www.belizelaw.org/supreme_co...; Jamaica: http://www.sc.gov.jm/Judgments/judg...; Trinidad & Tobago: http://www.ttlawcourts.org/c_appeal.htm and the Eastern Caribbean Supreme Court: http://www.ecsupremecourts.org.lc/J....

[7] . http://info.juridicas.unam.mx/infju...

[8] . www.tsj.gov.ve/search4/buscar.asp

[9] . E.g. http://www.tj.ac.gov.br/consultas/c...

[10] . “Sorteos” http://www.cncom.gov.ar/sorteo/Inic... and http://www.funcionjudicial-guayas.g... that publish the random allocation of judges to cases.

[11] . In Ecuador the dissemination of filed cases are in the first prosecution phase; in Latin America most of these cases conclude without reaching a decision about guilt or innocence (due to lack of evidence).

[12] . See http://ext02.tst.gov.br/pls/ap01/ap... “A pesquisa pelo nome da parte retorna resultado somente para partes representadas por pessoas jurídicas” (decision of the Tribunal Superior do Trabalho of Brazil on 30 August 2002) Also see: Mário Antônio Lobato de Paiva, ‘A difusão de informações judiciais na Internet e seus efeitos na esfera trabalhista’ in Internet y Sistema Judicial en América Latina (2004) 325-338, Ad-Hoc, Buenos Aires and Vantuil Abdala, Raimundo Simão de Melo, Grijalbo Fernandes Coutinho, Nílton Correia, Vera Olímpia Gonçalves, ‘Listas Negras: a perseguição empresarial e a discriminação de trabalhadores’, VII (146) Revista Jurídica Consulex (2003) 14-23.

[13] . The information is downloaded by the Bureau of Legal Information www.bil.com.mx, an enterprise that commercializes this information in an cd.

[14] . http://www.tsj-tabasco.gob.mx/consu... [Consulta Ciudadana].

[15] . http://www.tsjnay.gob.mx/boletin/bo... [Boletín Judicial].

[16] . http://www.pjn.gov.ar/infoTOC_std.p...

[17] . http://www.tst.gov.br/processos/

[18] . In the website of Panama in www.organojudicial.gob.pa/contenido/audiencia/abril03.htm and in Costa Rica www.poder-judicial.go.cr/juicios/2004/octubre/circ1_sanjose.htm [Scheduled Debates

[19] In Chile the article 197 of Civil Code establishes the confidentiality of these proceedings.

[20] . N. N. vs. Corporación Administrativa del Poder Judicial, http://www.geocities.com/remte2/rem....

[21] . See Sentence 2003-12695 in http://196.40.21.182/scij/busqueda/.... Also see Mário Antônio Lobato de Paiva ‘Responsabilidade civil do Estado por danos provenientes de veiculação de dados nos sites dos tribunais’, VI (63) Revista de Direito e Administração Pública (2003) 32-35 (www.jurisnauta.com.br/artigo.asp?id=707).

[22] . In A. M. C. v. Moore & Sthal s.a. (judgment 7201-01) and F. P. C. v. Aludel Ltd. (judgment 1435-03) the plaintiffs were fired because the employer had received information from Credit Bureaux that they were “involved in a criminal case” -the plaintiffs proved that they were victims. These two cases are about the dissemination of incomplete information. In A. C. D. v. Teletec s.a. (judgment 2885-02), the plaintiff has not access to credit because a Credit Bureau informed the names of plaintiff’s relatives (for full text of these opinions see http://www.poder-judicial.go.cr/sal...).

[23] . See Carlos G. Gregorio, “Protección de Datos Personales: Europa vs. Estados Unidos, todo un dilema para América Latina”, in Transparentar al Estado: la Experiencia Mexicana de Acceso a la Información, H. Concha Cantú, S. López-Ayllón, L. Tacher (eds.) 2004 (http://www.bibliojuridica.org/libro...).

[24] . See Joan Steinman, ‘Public Trial, Pseudonymous Parties: when should litigants be permitted to keep their identities confidential?’ 37 Hastings Law Journal (1985) 1-89 and Adam A. Milani, ‘Doe v. Roe: an argument for defendant anonymity when a pseudonymous plaintiff alleges a stigmatizing intentional tort’, 1995 Wayne Law Review (1995) 1659-1712.

[25] . In the same sense: Acuerdo del Supremo Tribunal de Justicia de Sinaloa (México) March 8, 2003, “Se clasifica como reservada la información contenida en los expedientes de procesos jurisdiccionales ... hasta en tanto no causen legalmente estado” and “la información contenida en expedientes de procesos jurisdiccionales de divorcio, alimentos, paternidad, filiación, adopción, tutela de menores y violencia familiar, aun cuando hayan causado o causen, legalmente estado”.

[26] . Recommendations approved at the Internet and Judicial system Seminar held in the city of Heredia (Costa Rica) on July 8th and 9th, 2003 with the participation of the judiciary, civil society organizations and academicians of Argentina, Brazil, Canada, Colombia, Costa Rica, Ecuador, El Salvador, Mexico, Dominican Republic and Uruguay. See www.iijusticia.edu.ar/Rules_of_Heredia.htm

[27] . The Transparency laws of Michoacan and Sinaloa (Mexico) force to define the purpose, but still none of these courts have made such definition. Access to Public Information Act for the State of Sinaloa, article 31. “Archives containing confidential information held by public agencies must be kept permanently up-to-date and be used exclusively for the legitimate and legal purposes for which they were created. The purpose of card index to this information, and its use for this purpose, must be specified and justified, and its creation must be for purpose of publicity or for allowing interested parties to learn of its contents, such that the interested party may ensure that: (a) All personal information kept and registered is still relevant to the purpose for which it was gathered; (b) No personal information is used or disclosed for a purpose incompatible with that for which it was gathered without the individual’s consent; (c) The period during which this information is kept does not exceed that necessary to accomplish the purposes for which it was gathered”.

[28] . Constitution of Guatemala, article 31: “Toda persona tiene el derecho de conocer lo que de ella conste en archivos, fichas o cualquier otra forma de registros estatales, y la finalidad a que se dedica esta información”.

[29] . http://cm.coe.int/ta/rec/1995/95r11.htm

[30] . www.cidh.oas.org/declaration.htm

[31] . See for example the decisions of the Consejo de Ética de los Medios de Comunicación de Chile http://www.anp.cl/site/pags/consejo.... This Council is an ethic self-regulation mechanism which came from the communication means themselves. Its purpose is to promote journalism ethic regarding information and to represent, within its attributes, the offences committed against it.

[32] . The Rules of Heredia do not include involuntary public people. See Gary Williams, ‘“On the QT and Very Hush Hush”: a proposal to extend California’s constitutional right to privacy to protect public figures from publication of confidential personal information’ 19 Loyola of Los Angeles Entertainment Law Journal (1999) 337-361.

[33] . Not only there is a lot of pressure coming from the different opinions of U.S.A. and Europe, but also none of Latin American judiciaries have economic resources to anonymize the judgments already published.

[34] . If there is any, they are partial or just omit considering personal data: see the publishing policies www.tribunalconstitucional.gov.ec/politicas.asp of the Constitutional Court in Ecuador and Agreements 37/2003, 1/2004 2/2004 (see www.csjn.gov.ar/documentos/cons_tipo.jsp?tipo=AC) by Supreme Court in Argentina.

[35] http://www.poderjudicial.gob.hn/Not...

 

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Second Round Table: The Juridical Internet: New Means, News Inequalities. Mrs Michele COME
Second Round Table: The Juridical Internet: New Means, News Inequalities. Mr Nick MOLE
Second Round Table: The Juridical Internet: New Means, News Inequalities. Mr Lionel THOUMYRE
Awarding of the ADIJ Prize
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Conference Closing
 

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