few days ago a friend of mine asked me what could do with a debt of 200 soles that someone owed him. He told me just the guy did not want to pay, even though my friend took the trouble to make him sign a paper. Even to my surprise, agreed to a penalty clause, which amount was higher.
At his insistence, I tried to explain as simple as possible the way the state protected the situation: first was to begin a grievance procedure where the debtor is quoted. If the procedure ends without agreement, "he said to my friend, then you can claim before the judiciary. Here I was thrilled and offered my services free of charge, telling him how we could raise the demand and expectations of winning the case. However, my friend asked me how much it would cost to handle the process and how long it would take. When I replied, thanked me very much and told me not to worry, that will some other means to persuade you to pay.
After we parted, I felt totally frustrated, not because he rejected my advice, but because the reasons abdicated recourse to the judiciary should be exactly the same as thousands of citizens who have small causes, but so many obstacles in the system as designed, simply shun the state courts. Cappelletti and described this situation: contained litigation, ie, to the inefficiency of the system, individuals will gradually lose their sense of rights, and conflicts that surround them are never solved or are resolved outside the law. This dire situation is the direct cause of complete failure of the procedural system with one of their goals: social peace.
What then? I think one of the key points for a reform of justice, beyond improving the system of appeal or repontenciar the National Judicial Council (to speak of two important aspects) is the creation of a system that addresses unique exclusively to solve those little things, to which can be effectively supervised by the court. This does not mean a reaction of the State with the intent of increasing the delivery monopoly justice, as there are other options such as arbitration or conciliation extrjudicial who are there to be used. The point is that the State meets the most suitable way possible what the Constitution was commissioned to establish the right of access to justice. This fundamental right, like many others, imposes on States to perform services and factual standards, which are carried out in different ways: creation of laws, government policies, actions of its agents, etc. Unfortunately, it is clear that the Peruvian State, throughout its history, has failed in this duty.
worth noting that the above proposal is nothing new. In Italy, for example, there are called the Small Claims Tribunals in the United States small claims court, and Brazil are the Juizo Especiais created by the 9099 Act in 1995 (replacing the Law 7244, 1984, law of Juiz de Small Causes ). However, Juizo Especiais -which may well be the role model in our country are not made by courts that simply dealt with minor processes. Absolutely. consists of a true realization of the phenomenon of access to justice for those who have limited resources, who are offered a procedure Celera, informal, free (at least entirely in first grade), where it promotes reconciliation, which can occur at any stage and, above all, where the judge decides less complex causes more for their standard of justice than by strict application of legal rules (this is a requirement in Article 6). In addition, public defenders assigned to each court plays an important role, as they provide legal advice to those who can not afford a lawyer *.
Beyond how it should design a similar system in our country , Whose starting point has to be a diligent study, responsible and interdisciplinary-is essential to note that justice, even for serious flaws in the system (where it says an alarming lack of political will), can no longer remain away from citizens so lazy. It is necessary for her to be there, having adequate remedies for any kind of need to raise the right material.
The judiciary can not continue to be synonymous with rejection, illegitimacy, delinquency, corruption. While overcoming these evils requires a lot of work, you must start somewhere, and I think there may well be an effort to get closer to justice individuals; that she cares about them, and they believe in that. And this seems like a dream, gradually may acquire shades of reality if you put your hands to work.
* This track is exciting because it is a concrete manifestation of the challenges of contemporary procedural law. I will try to shortly a paper on the subject.
0 comments:
Post a Comment