Courts (Including Detention)

Feedback from public consultations

On 18 February 2020, our team held a public consultation on strengthening access to justice through OGP commitments. Hosted by OGP’s research, analytics, and insight team, the goal was to identify data sources, measurement standards, and compelling examples of governments or citizens who are increasing access to justice. This information will be shaped into policy suggestions for OGP-participating governments. On the recommendation of early interviews, and feedback from OGP entities, we’ve divided access to justice into three phases of the criminal justice experience: policing and arrests; court systems, and corrections. Below is a summary of what we discussed.

Existing OGP commitments 

• Most relate to open justice and opening justice data (e.g., court data, conviction data, etc.).

Proposed issues on opening courts: 

• Reducing pretrial detentions to lessen overcrowding in prisons;
• Increasing prosecutorial transparency to reduce biases;
• Reducing prosecutorial bias in the discovery process; and
• Opening judicial data to increase trust in the judiciary.

What we heard from you: 

1. Need to anonymize data: Victim and defendant data should be used but not shared publicly.
   1. No. 10 Criminal Court of the City of Buenos Aires maintains a public Google drive database of information from their courts. However, personal data has to be manually redacted. For further information, see this explanatory article by Apolitical.
2. Courts data isn’t user-friendly. Data isn’t always available for bulk downloads and can require pdf scrapers.
   Solution:
   1. India is building a justice app to encourage non-court stakeholders (CSOs, law universities, law firms) to open legal data. This capitalizes on stakeholders who have already processed data in a user-friendly format.
   2. a. HiiL.org – The Hague Institute for International Law organization is working to identify private and public, as well as technological solutions to solve some of the most pressing technological needs.
3. Transformational efforts and feedback tools: What are the best methods and how can we track that we’re being effective?
   Solution:
   1. Plain language: Criminal Court 10 is choosing simplified language over ‘legalese’ when appropriate. “We cannot speak of openness if we don’t start by trying to make ourselves clear and trying to make us more understandable.”
   2. UNDP’s Judicial Integrity Network (Asia) discusses  judicial integrity, transparency, and accountability.
   3. Feedback resources include user polls and media recognition. Criminal Court 10 visitors are given satisfaction polls. They monitor how they’re covered by the media and stakeholders like the OECD’s Observatory of Public Sector Innovation. In addition other courts in the area have started taking up this work.
   4. Citizen report cards offer performance measures and evaluations (e.g., Ukraine has a long history of utilizing this type of tool and creates a partnership of CSOs and courts to evaluate court performance). This improves the user-friendly nature of courts, their services, and facilitates trust.
4. Opening justice is extra work without additional funding and resources. Additionally, inadequate budgets threaten data security.
   Resource:
   1. Partner with stakeholders. The Magistrates Council of the city of Buenos Aires uses an OGP commitment that established an open justice laboratory.
   2. Kenya: court-user committees are like citizen advisory councils and involve citizens in the decision making and the oversight or engagement with courts.
5. Balancing judiciary involvement and independence: Reforms from judges and the judicial system are more powerful. How do we push for judicial accountability and transparency while maintaining judiciary independence? How can we get judges to become involved?
   Resource:
   1. Criminal Court 10 holds judicial functions to bridge the gap between society and the judiciary.
   2. UNDP established a network in 2018 that works with the International Consortium of Court Excellence. They push for internal court self-assessments that are facilitated by outside judges who can offer improvements.
   3. UNDP is working in Singapore where courts are open to questioning their work and focusing attention on court users.
   4. Indonesia is seeing cooperation between the Ministry of Justice, the Ministry of Planning and the Court. They are working on publishing judgements and analysis of cases.
      1. Note: In Indonesian judicial integrity network meetings, most participants are judges. CSO involvement might create a defensive reaction among the judges. Consider allowing judges to meet first separately.
   5. USAID adapts the International Framework for Court Excellence to engage judiciaries on efficiency, performance, and transparency (e.g., Moldova, Ukraine).
6. How do we make judicial appointments transparent?
   Resource:
   1. Georgia: civil society is improving transparency and engaging the judiciary. The parliament conducted their first televised hearings for appointing judges to the Supreme court, which received quite high ratings.
   2. Ukraine: public integrity councils are formal institutions created by law that include civil society and experts who assess the qualifications of judicial nominees and make formal recommendations on these appointments. Note: these recommendations are not always acted upon, but they exist.
7. Transparency in the short term actually can decrease trust as they can reveal problems. However, if these problems are addressed, they then build trust and confidence.
   Resource:
   1. The Bahamas’ Swift Justice Initiative addresses transparency in judicial access in response to tension over the time required for processing cases, both for the defense and prosecutors.
   2. India is also pushing for live-streaming of court proceedings, which is particularly compelling with cases of national interest.

How we plan to address/incorporate your feedback: 

We plan to closely review these inputs as we begin framing our policy series which will identify major areas for innovation on opening up courts in OGP. In particular, we are taking deeper dives into data management (including personal data protection), judicial independence, and case management as these are areas we largely skipped during our earlier discussions.

We’ll pull effective court commitments from our database of 4,000 OGP commitments and map them against third-party data to see the extent to which OGP countries are innovating and addressing the challenges of trial processes within their action plans.

We will work with participants and partners to identify adaptation-ready emerging practices to OGP action plans.

What’s next?

• We welcome your feedback below (in the public comment box) or to our email at research@opengovpartnership.org. We are going to close comments on Monday, March 23, 2020. If you would like to talk to us, please reach out to the email above to schedule a phone call. You can also reach out to us even after the deadline during the production process.
• For the areas that require further research, we may commission research by partners to help inform the final report.

Thank you to everyone who participated in the consultations during the live sessions and in writing!

Background:

Existing OGP commitments on this topic tend to focus on transparency – including publishing data on ongoing cases, convictions and court decisions, and making hearings and other parts of judicial proceedings more publicly accessible. Recent analysis shows that these OGP commitments are less likely to lead to improvements in open government practices than others, highlighting the need for greater action. Many open justice commitments cover both civil and criminal justice, which can be interlinked.

Proposed Data:

We are considering using the following data sets to benchmark OGP performance in this area. We would love your opinion on which ones are your favorites, why, and what is missing:

• World Prison Brief: pre-trial detention and prison population data
• World Justice Project Rule of Law Index: fairness of criminal adjudication, justice system impartiality, due process
• Urban Institute: 2018 survey of prosecutors, US only
• Staton and Rios-Figueroa: 2014 survey of judicial independence in 200 countries over time
• Measures for Justice: data on fair process, public safety, and fiscal responsibility in criminal justice in 3000 counties, US only

Possible Issues and Reforms to Highlight

1. Pre-Trial Detention Systems
2. Prosecutorial Transparency
   1. Slovakia (2017): Publish list of prosecutors and increase the transparency of disciplinary proceedings (OGP commitment)
   2. Colorado, US (2015): Community Law Enforcement Action Reporting (“CLEAR”) Act mandated reporting of criminal law data
3. More Open Discovery Processes
   1. North Carolina, US (1996): Legislation granted death row inmates full access to police and prosecution files during the appeals process.
4. Plea-Bargaining and Trial Waiver Systems
5. Restorative Justice
   1. New York City, US: Use of youth judges and peer juries, among others, for young offenders for low-level offenses
   2. Los Angeles, US: Teen Court provides selected juvenile offenders with the opportunity to be questioned, judged, and sentenced by a jury of their peers.
   3. New Zealand (2014): Sentencing Amendment Act requires judges to adjourn proceedings to enable adult offenders and victims to be offered RJ.
   4. Finland (2006): Mediation Act seeks to achieve equal access to victim-offender mediation for all people (funded by the state).
6. Open Judicial Data and Processes
   1. Buenos Aires: Open data repository / open hearings in Criminal Courts 10 & 13
   2. Uruguay (2018): Publish judicial statistics / hearing videos (OGP commitment)
   3. Slovakia (2017): Publish all court decisions (OGP commitment)
   4. Paraguay (2018): Create an open justice data portal (OGP commitment)
   5. Georgia (2016): Publish a database of all convictions (OGP commitment)
   6. Greece (2016): Create electronic judicial services (OGP commitment)
7. Bias of Judicial Decision-makers:
   1. Slovakia (2015/2017): Improve process for judge evaluations, make disciplinary procedures against judges more efficient (OGP commitment)
   2. Kenya (2012): Software to randomly assign judges to cases (OGP commitment)
   3. Georgia (2012): Expand jury trials geographically and according to scope of application (OGP commitment)
   4. Liberia (2017): Bolster jury offices (OGP commitment)

Other relevant OGP Commitments:

• Honduras (2018): Creation of an online citizen complaint mechanism
• Slovakia (2017): Improve public scrutiny in election of judges and heads of court
• Kenya (2012): Public vetting of judges
• Afghanistan (2017): Creation of specialized courts regarding violence against women

Further Questions:

• What are the knowledge gaps that require research? Are these the right focus areas?
• Who else should we consult? (experts, activists, implementers, etc.)
• Research suggests that certain issues disproportionately affect women. Any examples of reforms that explicitly make gender considerations?