The National Judicial Council, "Omnium Consessu?

Preliminary Notes: One of the priorities can not be postponed Latin American society today is strengthening the rule of law as a core budget to achieve the governance environment that requires the development process. This task begins - of course - by strengthening the administration of justice as a key instrument to achieve social order, the preservation of fundamental rights and liberties, peaceful coexistence of peoples and claiming legal certainty investors. In this sense, since the end of the last decade in particular has been launched in judicial reform in Latin America with similar characteristics in different countries of the region. Within this reform process, there has been debate about which is the ideal model of judicial administration, in the center of discussion is the issue of judicial councils, entities that arise in the Continental European system in the bordering the postwar period in 1950, while in Peru the first record dates from 1968 when the military government in 1968 created a Judicial Council to "ensure the selection and discipline of judges."

According to Article 150 ° of the standard normarum Peru, the National Judicial Council (hereinafter CNM) is responsible for the selection and appointment of judges and prosecutors, except when the latter are elected as justices of the peace. As can be seen, the constitutional provision limiting the CNM for the sole purpose of administering the judiciary and in particular exercising or postulandi nominandi jus in the industry. It is a court that specializes in human resources and have few specific purpose to preserve the independence of the judiciary in the field of appointment, promotion and discipline of judicial officials. As such, its pillars are structured on the need to build an institutional barrier to prevent political interference in the integration of the Courts. Among the specific functions which has taken this advice are the following: • appoint, after public competition based on merit and personal evaluation, judges and prosecutors at all levels. These appointments require the affirmative vote of two thirds of the legal number of its members. • Ratify the judges and prosecutors at all levels every seven years. Those not confirmed may not reenter the Judiciary or the Public Ministry.

The ratification process is independent of the disciplinary action. • Apply the penalty of dismissal to the Members of the Supreme Court and Prosecutors and, at the request of the Supreme Court or the Board of Supreme Prosecutors respectively, judges and prosecutors at all levels. The final resolution, motivated and hearing the person concerned is not challenged. • Extend the judges and prosecutors the official title credits. In the case of Peru, in the formation of the National Judicial Council is the country's institutions represented on the Judiciary, Attorney General, Professional and Public and Private Universities. It consists of seven members who are called directors. Without prejudice to later come back to the question (in the heading the form of election of members of the various Councils), they are chosen: one, by the members of the Supreme Court of the Republic. One of the ordinary members of the Board of Procurators. One of the rectors of the universities. One of the rectors of private universities. One by union members in the various bar associations in the country. Two are elected by union members in other professional schools in the country bar associations discounted.

As you can see, the CNM has extended a pivotal role within the organizational chart, not only in the justice sector but in the social and legal life of our country, given that the reform of the state appears in most countries of the region as a prerequisite for sustainable development and governance. In the same context and simultaneously, the need for reform of the justice system has been consolidated as part of a set of priority activities to ensure both the rule of law and the independence of the judiciary. Although in practice it has overlooked its importance has ever been able to ignore the administration of justice as the most basic responsibilities of the State. What was said on one side reveals that there is a reality in our country, which is the transformation of justice, and another that, in this transformation the National Judicial Council holds a special importance. Regarding the first aspect, it is no secret the state it was in the administration of justice in our country in the past decade, the lack of justices allowed the course of widespread corruption, lack of independence and therefore legal uncertainty of the judgments in the context of the Judiciary and Public Prosecutor, virtually handcuffed by political power.

It is in this latter aspect of political control over the agencies responsible for administering justice, which begins the work or the role of the National Judicial Council. Given the composition of the CNM, clearly shows his separation from political control agencies, primarily the legislative and executive powers so given to civil society through their representative institutions, the opportunity to participate in the work of justice in Peru. In this regard, the National Judicial Council, has become one of the mechanisms that the Constitution has provided for citizens to carry out a social audit of the function of administering justice by judges and prosecutors. In the words of Dr. Lora La Hoz, the situation of justice in Peru has been a challenge for the National Judicial Council, as it has been necessary to step outlining the new contours of the democratic rule of law, many times without fully understanding the work done. Since its constitutional powers were restored in November 2000 with the enactment of Law No. 27,368, this law has allowed the Council began a series of actions that are aimed directly at encouraging changes in the so-called " second-generation reform?, which extends to the structure of the state and, within it, the "Administration of Justice?, a cornerstone of a democratic state of law which, like ours, constantly looking through the administration of justice efficient and timely respond to the requirements of equal opportunities in the organs of justice that demands citizenship.

The Provisional: A favorite son of the Administration of Justice in the 90s': The problem of provisional self-coup was generated with the April 5, 1992 when, through executive orders, the de facto dismissed most part of the country justices. Undoubtedly the issue of provisional acquires significant importance, because this circumstance became widespread in the past decade, with the consequence of having judges and prosecutors uncertain obviously lack independence, removable at will by the governing bodies and directly linked to political power and highly susceptible to bond with elements of corruption, either directly or indirectly, either pre-sold, either by recommendations, but in any case in the pursuit of personal gain as the goal of justice, and not the community, which is the true sense that corresponds to the exercise of the judiciary. (Id. 2) The issue of selection and appointment of judges is a major issue, given that the provisional prime feature became the Judiciary and the Public Ministry in the past decade. Faced with this situation we can not irresponsibly, just name the blind.

It is necessary that the process steps cover those expectations rationally expected by civil society and the general population, so as to ensure a suitable body of magistrates. Will ultimately they who, by their actions and their behavior in office cash, show that were awarded the distinction of being appointed as judges or prosecutors, otherwise will be subject to appropriate disciplinary proceedings and punishment that merits action that violates a appropriate behavior in the functional aspect and the suitability for the position in which they are. Here is the important role of the CNM, a constitutional body, mainly technical, bringing together the representatives of the people, through a function delegated to civil society in its most representative and linked to the issue of justice. Selection Methods: Judicial Independence, from the creation of the rule of law, has placed at the constitutional level as the first attribute of the jurisdiction. If the Court is not independent and judges and magistrates are not impartial can not say that true justice is administered. It is important to note that, although the selection and appointment process responds to the need for leaders and independent judges as soon as this does not mean that the urge becomes a goal in itself, ie it is not name by name.

In this context of provisional appointments and reduction, another vital issue is to be no doubt selection methods, which are themselves revolutionaries, so to speak, as the system of assessment used in the processes selection and appointment of judges, developed to date, has had the basic premises: (i) equal opportunities for all those that meet the requirements of law, aspiring to a seat on the bench as judge or prosecutor and ( ii) the primacy of technical ability - legal and moral conditions of the applicants, game over partisan interests and political alliances, which was the preeminent element until 2000. This methodology has allowed the principle of independence of the judiciary, is essential and inherent to the role of the judge, it becomes an objective reality, this is so, since as a result of the origin of their appointment, the judge selected and appointed with the certainty that does not owe favors to anyone. It is important to note that, although the selection and appointment process responds to the need for leaders and independent judges as soon as this does not mean that the urge becomes a goal in itself, ie it is not name by name, and this has been said by the Council has always been aware of this, although from different sectors to criticize without knowledge of the facts as I understand, you are favoring the quantitative element of the qualitative.

The search for quality standards, both professional and ethical and moral, between the candidates for positions in the judiciary, is constant, and consequently, the public must understand that the work that the Council, to consolidate a body of magistrates upright and quality, is a medium to long term. The results of these processes that have occurred to date will only be measurable within a reasonable future, especially if today is being gradually implemented the new Code of Criminal Procedure. Perhaps this feature selection and appointment, will become the main weapon, or one of the most important for the restructuring of the judiciary and prosecutors, this being so, the Council has been concerned to implement and improve systems evaluation methods applied to the selection so that the people be assured that you will find in the resulting mentioned, a bulwark for the defense of their interests and recognition of their rights claimed at trial. Regarding the above, for an estimated 5 years, the CNM has been developing good Regulations Competition for the Selection and Appointment of Judges, being this year 2008, Approved by Resolution No. 138-2008, CNM of date 29.05.2008.

Regulation on the shoulder emphasizes the technical requirement - legal entity, duly evidenced in the academic life of an aspiring judge, and other formal aspects required. At this end we consider merituar successful academic study in other disciplines, all taking into account the requirement that there must be by the state for multidisciplinary and specialized professionals. Ratification of Judges: The ratification of judges and prosecutors is constitutional powers of the National Judicial Council, along with the appointment and disciplining of these magistrates. Thus, paragraph 2 of Article 154 of the Constitution of 1993 states: "The functions of the National Judicial Council: (...) 2. Ratify the judges and prosecutors at all levels every seven years. Non- ratified may not reenter the Judiciary or the Public Ministry. The ratification process is independent of disciplinary action. " As we see, the ratification has the following characteristics: it is periodic, it involves the imposition of a penalty by reason of committing a breach of discipline (ie, not a punitive process) and its consequences should not affect ratification for life to the judge (not to work in the judiciary or the prosecution).

These features add to the resolutions of the National Judicial Council in this matter can be reviewed in court, according to Article 142 of the Constitution. The decisions of the National Judicial Council on the ratification of judicial magistrates and prosecutors have been subjected to severe questioning by various individuals and institutions related to the legal task: lawyers, law professors, NGOs human rights and entities involved in the protection of fundamental rights of people as the Ombudsman and the Constitutional Court. It is these latter two entities have issued judgments on this issue about specific cases that have been known in the exercise of its constitutional functions. Indeed, through the Ombudsman Resolution No. 038-2002/DP, published in the official gazette "El Peruano" on November 30, 2002, the Ombudsman noted that the resolutions of the National Judicial Council in which decided not to ratify certain judges or prosecutors, constitute wrongful acts that violate constitutional principles of dignity, interdiction of arbitrariness and advertising and the fundamental right of judges unratified due process and access to information public as well as guarantees of permanence of judges and prosecutors in their functions and judicial independence.

Meanwhile, in the judgment in the amparo process followed by Diodorus Antonio Gonzales Rios against the National Council of the Magistracy (Docket No. 2409-2002-AA), which is challenging the agreement not to ratify the applicant in its Superior Vocal by Holder Callao Superior Court, the Constitutional Court declared the claim founded on the grounds that the decision of the agency action was "absolutely unreasonable and clearly unconstitutional." Both the resolution defensorial as Constitutional Court motivate some thoughts, mainly around two issues: a) the constitutional principles and fundamental rights violated, and b) the possibility to challenge decisions not ratified by a constitutional process protection of rights fundamental. In Dr. Daniel Soria comment Luján, in relation to this issue outlines: "According to the National Judicial Council, as reported by the Ombudsman, not being the process of ratifying a disciplinary or punitive in nature, not subject to motivate the need for final resolution granting preliminary hearing or the judge, ie the standards of due process. For counselors, the decision on ratification or judges are not "votes of confidence" without cause, that is, discretionary acts.

However, the Council's own statements that do exist could appreciate to consider criteria for granting trust to a judge and would be related to the need to separate the judiciary and prosecutors to judges and prosecutors who may be associated to commit unlawful acts or who do not have enough capacity and suitability for the performance of office. It follows a response from the Council to the Ombudsman, in which he states: "(...) the ratification act as a purifying mechanism and periodic renewal of the judiciary in favor of a proper administration of justice , to keep outside the judiciary and corrupt judges and prosecutors trained and qualified for the position?. These statements make it clear that counselors use criteria that would be related to different processes for ratification. In fact, corruption are necessarily related to the commission of illegal acts that may lead to administrative or criminal case in which it is granted that the judge accused of such acts has at its disposal all the guarantees of due process.

On the other hand, the issue of the capacity and suitability for the performance of office is one aspect that has more to do with the selection process than with the ratification. Moreover, the Ombudsman has reported that the ratification process for the directors "have collected information of dubious links with professional proficiency and the conduct and adequacy of the" such as the judges questions about their relationships, the reasons for their singleness, their casual companies, and so on. If these were the criteria, the resolutions of ratification might have become judges moral sanctions against homosexuality, divorce, etc.., Which would lead to actual instances of discrimination. In any case, whatever the motivation of the directors to grant or deny a magistrate confidence through a ratification process, the truth is that for members of the National Judicial Council ratification is a process in which absolute discretion in evaluating the tenure of a judge or prosecutor. To that extent, we must ask whether such legal acts are compatible with constitutional principles and fundamental human rights? While certain situations may or may not bring criticism of the role of ratification of judges by the CNM, in the words of Dr. La Hoz, today, "If it must have a citizenship, this aspect is that Unlike other processes of ratification in the past, the present is detached from the spheres of political, ideological since its inception.

In this sense, does not respond to the interference of any kind of state powers, ie there is no involvement of the executive branch or the legislature or the judiciary. This is a guarantee that the criteria respond to objective facts which occurred during the ratification process, which are evaluated thoroughly and concluded that the renewal or not, confidence in judges and prosecutors to continue in the exercise of the judiciary , without implying a disqualification of their professional capacity?, although the academic side in my opinion, should prevail, obviously based on excellent moral pillars. It should specify that the power to ratify and their characteristics, was constitutionalized in paths judgments of the Constitutional Court, whose headquarters are clearly resolved the motivation not need them. That is, at any time the Council has shown motivation contrary to the resolutions of ratification and ratification, but has responded to the ruling of the supreme interpreter of the Constitution. However, this topic is so debatable, it has even been necessary to enter into force the Code of Constitutional Procedure, a new criterion that determined motivation is required in the resolutions listed above, to which the Council is complying with the provision in force.

In summary, the role of the National Judicial Council in the transformation of justice in Peru is primarily formed in the body of whose functions are linked together by a continuous assessment work, both for the appointment, ratification and in the disciplinary proceedings for judges. This evaluation is the basic premise total depoliticization and disconnection of any interference by the several courts, to the extent that their functions are carried out with strict technical criteria. Finally, we must add again taking the words of Dr. La Hoz, in the sense that "You can certainly infer that the role of the National Judicial Council directly affects the final de-politicization of the various courts and dispute resolution , as it aims to provide the proposed neutrality and selection of judges, which seeks to consolidate a democracy like ours require a high level of independence, allowing social actors: national and foreign, feel the tranquility and assurance that ultimately find a just and proper to law without interference of any order to resolve any conflict of interest, for if there is legal certainty and stability in the country there will be no investment, and if it occurs, there work, and if no work no jobs and there are no jobs, no social peace.

In these circumstances, even the Constitutional Court, whose members are subject to the political game the Legislature should be appointed through a selection process technician in charge of the National Judicial Council, the Ombudsman also?. The penalty for judges: Article 154 of the Constitution, paragraph 3, states: "The functions of the National Council of the Judiciary: the sanction of removal to the members of the Supreme Court and Prosecutors, and on request of the Court or the Supreme Board of Prosecutors, respectively, the judges and prosecutors at all levels. The final resolution, motivated and hearing the person concerned, is unimpeachable. " Unlike the 1979 Constitution, the 1993 Constitution gives the National Judicial Council's role on the sanction of removal to the Members of the Supreme Court and Prosecutors, also, the Constitution empowers the Council to impose the penalty impeachment for judges of inferior rank A above, but only at the request of the Supreme Court or the Board of Procurators. In this respect, the penalty of dismissal to the Members and Prosecutors may be imposed as a result of disciplinary proceedings in connection with a complaint or merit of an investigation ex officio by the Board, and, in the case of other judges and prosecutors, as noted in the preceding paragraph, only at the request of the judiciary and prosecutors.

Also, one of the main problems facing the National Judicial Council on disciplinary procedures is the existence of uncertainty in the determination of the conduct that constitutes infringement, "Made serious crime without compromising the dignity of the office and detract in the public ", which has led to the Constitutional Court Judgement No. 4596-2006-PA/TC urged him to clarify and develop this concept in its rules of indeterminate legal. The new Judicial Career Law in an effort to remedy this situation has been incorporated as one of the innovations made to classify the faults into three categories: minor, serious and very serious. Minor offenses are punished in his first commission, reprimand, and, second panel with a fine, serious offenses are punished with suspension and dismissal of the very serious, thereby achieving criminalize the conduct, which is progress, and allowing judges have greater certainty as to determine what conduct gives rise to disciplinary action. In this regard through Law No. 26397, amending the Organic Law of the National Judicial Council to expand its powers to disciplinary sanctions other than dismissal of judges and prosecutors.

In this sense it is giving the Council a power not provided for by Article 154 of the Constitution of Peru, a provision that does not allow by law can expand the powers conferred by the Constitution, so that the Council has said skills necessary to perform a previously constitutional reform, reform that will allow no further questions the validity of the application of sanctions by the Council. The enacted law reads: "If the penalty imposed in the opinion of the Governing Body and management of the judiciary or the public prosecutor's dismissal, this recommendation will be made known to the National Judicial Council" (Article 2.2.2) . Rotundo and conclusive. Harmful particles 26933 Law have not been repealed. They live, act, and to die require expressly repealed. This, and other signs of what is happening in the country, necessarily return us to the issue of democratic institutions, and specifically the issue of democracy in Peru. Therefore it is essential to remember that democracy is not an end. That the moral character of democracy is not automatic but is subject to the purposes for which it pursues and depends on the mass to be served, because strictly speaking the value of democracy stands or not maintained according to the values ​​embodied and promoted.

We must all remember that the political power to legitimize, is obliged to respect the fundamental rights of the individual and the essential rights of the institutions themselves are the support constitutional democracy in a country, much more if you are in autonomy of institutions set core as our National Judicial Council. - FOOT P? GS .--- (1) MARTINEZ NEIRA, NESTOR. "Council of the Judiciary in Latin America?. BID. May 19 to 22: 1996. Page 01 (2) http://www.cnm.gob.pe/doc-menu-9.html (3) Ricardo La Hoz Lora. (4) CALVO SANCHEZ, MC, The challenge of the Judges and Magistrates (I), University of Procedural Law Journal (RUDP), No. 1, 1988, p. 73 and 74. (5) Ricardo La Hoz Lora. http://www.google.com.pe/search?hl=es&q=funcion+del+consejo+nacional+de+la+magistratura&meta = (6) Ricardo La Hoz Lora. http://www.google.com.pe/search?hl=es&q=funcion+del+consejo+nacional+de+la+magistratura&meta = (7) http://www.tc.gob.pe/jurisprudencia/2002 / 2409-2002-AA.html (8) http://www.cajpe.org.pe/rij/bases/juris-nac/Soria-Ratificacion.htm (ibid. 9) (9) That if required in the case disciplinary proceeding, according to the last part of paragraph 3 of Article 154 of the Constitution (10) Advocacy Resolution No. 038-2002/DP, fourth section of the portion of views. (11) Ricardo La Hoz Lora. http://www.google.com.pe/search?hl=es&q=funcion+del+consejo+nacional+de+la+magistratura&meta = (12) http://www.cnm.gob.pe/cnm/index . php? option = com_content & task = view & id = 184