Jeanne Hersant Universidad de Playa Ancha Facultad de Ciencias Sociales/Centro de Estudios Avanzados Valparaíso, Chile Fondecyt Iniciación n°11121171 Patronage and gender roles in the inquisitorial justice in Chile*
Jeanne Hersant [email protected] INTRODUCTION
The purpose of this article is to analyze the patterns of gender relations and domination in the
inquisitorial justice in Chile, characterized by a written, often opaque, procedure and judges’ legal and
administrative discretionary power. Inquisitorial justice still exists in criminal matters despite the
implementation of the criminal procedure reform (CPR) that implemented between 2000 and 2005 a
completely adversarial justice. Chile seems to be a unique case of coexistence of two criminal procedures
radically different, which breaks the legal principle of equality before the law (see details in the Annex).
The civil jurisdictions and higher courts (Courts of Appeal and the Supreme Court) too still function
according to the pattern of written procedure and judges’ administrative discretion.
Here, administrative discretion is not defined as a power towards justices’ users, rather towards
administrative staff and court clerks: we shall refer to administrative discretion when actors depart from
legality or the established rules regarding the organization of work in the court. In the Chilean
inquisitorial system, judges concentrate in their hands judicial and administrative authority because of a
specificity of the Chilean Judiciary that remains largely untouched –at least in higher courts – until today
(Flores 2014).
This article describes the judge-clerk set-up under the inquisitorial system, in which a traditional
form of domination prevailed, according to Weber’s ideal types. In practice in lower courts, court clerks
used to (and still do) largely carry out the enquiry in the judge’s stead. Up until the reform, moreover, the
* Paper presented at the panel on “Gender and the legal profession” of the Annual Meeting of the Law and Society Association. It is a draft paper that cannot be quoted. 1 Jeanne Hersant Universidad de Playa Ancha Facultad de Ciencias Sociales/Centro de Estudios Avanzados Valparaíso, Chile Fondecyt Iniciación n°11121171 lower courts operated thanks to “phantom” court clerks who worked for free (“on merit”) in the hope of
one day being nominated to a permanent position.
This article stresses that this traditional domination is based on the clerk trade being a “feminine
trade” (Pinto 1990) (although it might be exercised by men, as well as we will see) whereas magistracy is
a masculine world. This qualification does not – only – has to do with figures of the sex distribution in the
different grades of the Judiciary. It has to do with gender as a principle of division and hierarchical
organization of the social world, as Bourdieu (1998) would say. This approach was recently the object of
an article about judicial reforms in Chile as product of a gendered expertise (Azócar and Marx Ferree.
2015). This article may be considered as the micro sociological part of the latter. It refers to a masculine
domination in the Chilean inquisitorial Judiciary that in its softer way appears as a patriarchal labour
division – sometimes exercised or reproduced by women. In its harder manifestations, it appears as sexual
domination exercised by male higher judges towards subordinate females.
PRELIMINARY REMARKS
This article will be referring to them as actuarios (court clerks), though from the point of view of
court regulations (Código Orgánico de Tribunales) the only administrative category is that of officials
(funcionarios), also commonly called “judicial employees” (empleados judiciales). Yet within the
inquisitorial system the term actuario/a was widely used to refer to “the role that any employee may hold
independently of his or her official post or grade within the hierarchy” (interview with the head of the
Asociación Nacional de Empleados Judiciales, ANEJUD, carried out on 26 August 2015 in Santiago).1
“The actuarios do the routine court work, such as […] interviewing witnesses, receiving lawyers’ briefs,
filing pieces of written evidence, and the like. […] The function of the judge in judicial proceedings is
therefore limited to ongoing supervision over the handling of cases by actuarios (and even this function
may be partly delegated to the secretary of the court) and to deciding the case” (Ietswaart 1981-2: 656).
This system of "delegating functions" meant that actuarios had extensive discretionary powers. Officials’
2 Jeanne Hersant Universidad de Playa Ancha Facultad de Ciencias Sociales/Centro de Estudios Avanzados Valparaíso, Chile Fondecyt Iniciación n°11121171 discretion is as greater as there are no litigants witnessing their interaction with justice users, and many
times neither judges are. Despite being contrary to the ethics and legal framework incumbent upon
judges, delegating functions in this manner was a well-established though dissimulated practice. I agree
with Ietswaart (1981-2, 655) that, “as the actuario has no counterpart in the Anglo-American and the
Continental legal traditions, it seems unnecessary to translate the term”.
The first phase was conducted between March and July 2012 in an inquisitorial court in the
Metropolitan region, where I carried out observations one day per week and consulted the archives of
cases that had already been judged. I also have conducted 51 in-depth interviews (lasting between one
hour and three hours) with 33 involved in the inquisitorial justice (presently or in the past) among whom
judges, court clerks including the president of the Asociación Nacional de Empleados Judiciales, lawyers,
the head of the unit within the Ministry of Justice that drawn up the plan for court administrative reform.
The overrepresentation of female employees within the sample reflects the sex distribution in the
Judiciary. Overall, 58 percent of those working for the Judiciary are women and 54,6 percent of the
official in the criminal justice are women. The administrative hierarchy of the Judiciary is comprised of
the grade of employee (54 percent, or 5373 people with 3011 belonging to the criminal Justice), a
secondary grade including unit heads and administrators (10 percent, or 1046 people),2 and a primary
grade comprised of judges (19 percent, 1851 people).
1. Lower courts, the poor relation in the Chilean justice system
“The Chilean judiciary, in its basic institutional structure, is the oldest in Latin America” (Hilbink
2007: 41). But it has been built up as a centralised3 and extremely hierarchical entity, without the State
bothering itself with the actual conditions in which judicial procedure took shape (Palma 2014). Over the
course of the twentieth century "the judicial system continued to function with the structure that had been
established in the early nineteenth century, in a state of abandonment" (Matus 1999: 256). The evidence
gathered during the fieldwork presented here backs up this observation.
3 Jeanne Hersant Universidad de Playa Ancha Facultad de Ciencias Sociales/Centro de Estudios Avanzados Valparaíso, Chile Fondecyt Iniciación n°11121171 Ximena4 has been a contract worker since 2000 in a Juzgado del Crimen (operating under the old
system) in the Metropolitan region, after having worked at a private university as a lecturer in early
childcare and education, and then as an estate agent. When she first joined the court she was shocked by
how it compared the private sector she had come from. There were no computers, only electronic
typewriters and word processors. It was only in 2011 that the court was hooked up to the Internet. But
there is no intranet and the court's computers are not networked together. (Interview conducted on 15
May 2012).
Carlos is a judge in the court where Ximena works. He started working as a court clerk in 1995,
when he was a law student. He went on to work in various jobs, moving up through the ranks and going
on to attend the Judicial Academy before being appointed judge in 2005. When he joined, Carlos was
struck by the lack of resources available to the Poder Judicial. It was only in 2001 that the courts were
equipped with computers, "one per court, for the judge". When working in his first position as a judge, he
started setting up a system of donations to equip "his" court with computers. He says he was a bit
ashamed, but that something had to be done to find a solution. For instance, the private university where
he had studied had given two computers which still worked. As for printers, the clerks had to buy them
themselves and it had taken several requests on his part before the Corporación Administrativa del Poder
Judicial (CAPJ)5 had at least provided the ink cartridges. (Interview conducted on 1 June 2012).
This state of neglect has impacted on how ongoing cases are handled. It has become common
practice for judges to call on people prepared to work for free (“a merito”) so as to make up for the lack
of resources available to the courts. In addition to this the justice system – and not just the criminal justice
system – has earned the reputation of being extremely slow (Matus 1999: 160). In 1983, the president of
the Supreme Court, Israel Bórquez, admitted in his annual opening ceremony address that “in only 25
percent of criminal investigations in Santiago does the investigation produce any result” (Matus 1999:
170).
4 Jeanne Hersant Universidad de Playa Ancha Facultad de Ciencias Sociales/Centro de Estudios Avanzados Valparaíso, Chile Fondecyt Iniciación n°11121171 2 Patronage and favouritism in the careers of “actuarios”
Up until the 2000s being appointed to a position within the judicial institution was based on a
recommendation from a third party (“pituto”).6 More specifically, there was no other way of being
recruited as a clerk for a lower court; only the judge and the court secretary (senior clerk) were appointed
on the basis of their university law degree (interview with Jorge,7 12 March 2012).
What we are interested in here is not the horizontal dimension and the principle of reciprocal
backscratching (compadrazgo8); rather, it is the vertical dimension of the patronage, where new recruits
have to curry favour with the magistrate if they are to retain their job. This unequal relationship of
allegiance and obedience in exchange for protection and favouritism corresponds to traditional authority
as described by Max Weber (1978). We shall look at this in greater detail via two trajectories, those of
Fabiola and Gabriela.
2.1 Recruitment on recommendation and by co-optation
When conducting this survey I used to start each interview with: "Tell me how you joined the
Poder Judicial and how you learned your job”. They had all joined it on the basis of the recommendation
of a member of family, friend, or neighbour, irrespective of their level of education (as of the 1970s it was
necessary to have completed secondary schooling).
It was not rare to come across families where all the siblings worked in the administration of the
judiciary. One of the people I interviewed had co-opted her three sisters and her brother into the
Judiciary.9 Another, who had been co-opted by her mother, also had an elder sister working in the
institution.10 Once there, training consisted in observing and seconding a person they were appointed to,
where no salary was received for this period. But amongst my interlocutors was a woman whose “pituto”
had been so high-ranking (an uncle by marriage who was a judge on the Supreme Court) that she had
immediately obtained a permanent position as a clerk11. A significant example of "string-pulling" is the
one of Rafael Retamal López, president of the Supreme Court from 1983 to 1988, who "placed" no fewer
5 Jeanne Hersant Universidad de Playa Ancha Facultad de Ciencias Sociales/Centro de Estudios Avanzados Valparaíso, Chile Fondecyt Iniciación n°11121171 than 50 of his relatives in the Chilean justice apparatus (Matus 1999). The expression "belonging to the
Judiciary family" takes on a new meaning in the light of this method of recruitment, where old-handers
lay claim to a sense of belonging in order to contrast themselves with new entrants (since the
implementation of the CPR) recruited using external procedures, or, in the case of magistrates, having
trained at the Judicial Academy. These new recruits are referred to as having "come in off the street".
This binary distinction structures the patterns of belonging, and is always based on the terms Family
versus Street, thereby inverting the order of prestige and honourableness introduced by the CPR.
2.2 A feminine trade done by men too and a female-supported masculine domination in the lower
courts
The model of traditional domination implies mutual obligations, with clerks going beyond their
professional obligations and trying to be always one step ahead of what the judges wanted, with the
deserving being recompensed by the judge's good favour, where this too also applied outside the strictly
professional sphere. They are "jobs in which ‘femininity" is promoted to a professional quality", study of
which "reveals a type of skill that is irreducible to a kind of knowledge that could be transmitted via
formal learning" (Pinto 1990: 32).
In addition to the strategies and routines specific to their public service, clerks in the inquisitorial
system had to be able to develop skills and dispositions enabling them to retain their position, to please
the judge, and to obtain his or her support in order to be awarded a permanent appointment. The first
requisite was to be hard-working. "A merito” work was considered as a trial period of undefined length,
during which it was not possible to slacken the pace. In addition to this, clerks needed to know how to
please the judge, where this involved knowing his or her habits and little preference for drawing up
judicial documents and, in the proof of ultimate trust, rulings. "I know/knew his/her style," was an
expression which cropped up several times in the interviews, with Luisa, Carla, and Fabiola,12 when it
was for instance a matter of drawing up a ruling. On several occasions, when referring to her relationship
with the judge in the Labour Court where she worked that operated under the inquisitorial system, Fabiola
6 Jeanne Hersant Universidad de Playa Ancha Facultad de Ciencias Sociales/Centro de Estudios Avanzados Valparaíso, Chile Fondecyt Iniciación n°11121171 proudly stated: "I never said no to him", such as the occasion when, as a young intern in 2005, she spent
two weeks going through the court archives from 8 AM to 8 PM, sifting through 7000 case files “slung
into a storeroom” (interview conducted on 25 July 2014).
On other occasions the judge asked Fabiola to draw up a ruling. The way she told this did not
present it as a matter of saving time in an overworked court. It was rather a form of initiation by which
the judge showed his faith in an “actuaria” he viewed as promising: "he asked me how I would draw up
the ruling and used to say 'surprise me!'. But I knew his style and never got it wrong" (interview
conducted on 11 August 2014). It was an opportunity for her to show to the judge that she was so
conscientious an employee that she had incorporated his personal way of working.
In addition to showing the same zeal and the deference of Fabiola, Gabriela’s account13 illustrates a
process by which it was possible to remain within the judicial institution that had little to do with
professional skills strictly speaking (though this does not mean to say that they were in any way lacking).
She joined the inquisitorial criminal court in the Valparaíso region in 1971 thanks to her mother's brotherin-law who was its judge, and was appointed to a permanent position after six months when the post she
had been informally filling without receiving any salary was officially declared vacant.
A few years later, in 1974, under the dictatorship, the body of the secretary to the Communist MP
Julieta Campusano was found on a beach within the court's geographical jurisdiction.14 A judge was sent
from the Court of Appeal in Valparaíso to devote himself entirely to this enquiry. On leaving the court a
few weeks later, he said to Gabriela: “What are you doing here in the middle of nowhere? Don't you want
to leave?”, to which she instantly replied “Of course I do, can you help me?”. A week later she received a
telegram enjoining her to apply for a position in a mixed court in Viña del Mar as an “oficial tercero” (a
rank above hers’).15 I asked Gabriela how she had caught the visiting judge's attention. “It was easy, I was
the only woman in the court,” she answered. I insisted a bit – had they had the opportunity to work
together? Not at all, Gabriela’s job was too low down the scale and the judge working on the politically
sensitive case was assisted solely by the court secretary. She then talked about social moments at the
7 Jeanne Hersant Universidad de Playa Ancha Facultad de Ciencias Sociales/Centro de Estudios Avanzados Valparaíso, Chile Fondecyt Iniciación n°11121171 court, such as birthday celebrations. Gabriela described herself as someone who liked partying and
referred to when she had danced folk dances with the judge. She also explained that since she was the
only woman she behaved as if she were the mistress of the house, offering to bring the judge his coffee
and that sort of thing, “which men don't do”. In fact these were opportunities for Gabriela to stand out
thanks to her humour and liveliness, whilst being affable and showing that she was there if the judge
needed her.
On other occasions “masculine” skills are mobilized used to help a (female) judge in the context of
this feminine disposition to serve beyond professional interactions. One judge from the region of
Valparaíso recounted the following anecdote: “one day, when I was a young lawyer [under the old
system], the judge of my tribunal broke down near the court with a flat tyre. I didn't hesitate for a
moment, and went out in my shirtsleeves to change her wheel. I was proud to do that for her” (interview
with Osvaldo, 8 December 2012).
When thinking about masculine domination, one cannot erase women from the picture. I recently
conducted two interviews with Mariana, a female rapporteur and former actuaria in a civil court in the
Region of Valparaíso. She started working twenty years ago in a court where the secretary (the 2nd most
important person after the judge) was a well-respected woman with a large career in the Judiciary: “She
forced us to came out backwards from the judge’s office because ‘having one’s back to the judge was
inconceivable’. Every day at 5:00 pm she would go and buy bread and invite the men (male officials) to
the kitchen to have tea and we (the female officers) were not allowed to stop working and have a break.
We could just go and help ourselves to a cup of coffee and then get back to work” (Interview conducted
on 11 April 2016). No one would dare to complain or contradict the female secretary, not even the judge.
This custom stopped when a new (female) judge “with more personality” arrived to the court and forbade
it.
8 Jeanne Hersant Universidad de Playa Ancha Facultad de Ciencias Sociales/Centro de Estudios Avanzados Valparaíso, Chile Fondecyt Iniciación n°11121171 3. Masculine domination and feminine skills in the Courts of Appeal
Until the Criminal Procedure Reform, as you moved up the hierarchy of the judicial apparatus,
traditional domination was more markedly accompanied by male domination, be it through “handkissing”, sexist/sexual comments or sexual harassment. Nowadays the gendered relationships in the
Appeal Court seem to have other pattern than the subordination and sexual one.
3.1 “Hand-kissing” and male domination
The Courts of Appeal are all-powerful at regional level, and they can draw up and unpick “ternas”
as they choose. Once candidates have won over the confidence of a judge and a promise to support their
application for a permanent position, they then face the Court of Appeal and the ritual of “hand-kissing”
(besamano). Gabriela’s account included many informative details about her first appointment. She sent
in her CV and covering letter as stipulated by the formal application procedure for the post in question,
but since the appointments were made by the Court of Appeal (as were the assessments of each clerk and
judge), she also had to go along with the ritual visit to the Court of Appeal in Valparaíso, 60 or so miles
from the town where her court was. The person placed first on the list of three candidates (the “terna”)
drawn up by the judge had to physically go to the Court to show their interest in the job. For Gabriela this
formality was a form of ritual humiliation: “you have to say things such as: I know that I depend upon
you to get this job, it is an honour to work for this court, and I really need the salary, etc”. (Interview with
Gabriela, 9 July 2013). The candidate is sent by the judge from their court, who also suggests which
judge at the Court of Appeal they should request to see. Whilst there is nothing obligatory about this
formality, it is recommended. If you do not do it then according to Gabriela you are likely to see the job
being given to someone lower on the list, provided they have well-placed backers.
The practice of “hand-kissing” and in general the deference towards the hierarchy is also expected
of judges who wish to be promoted (Hilbink 2007). Until the prohibition of this by the Supreme Court in
2015, following a requirement from the Asociación Nacional de Magistrados, judges too had to follow
9 Jeanne Hersant Universidad de Playa Ancha Facultad de Ciencias Sociales/Centro de Estudios Avanzados Valparaíso, Chile Fondecyt Iniciación n°11121171 the ritual of the “private audience”. A male judge told me about some sexist comments reported by
female postulants who had gone to meet Appeal Court judges to expose their merits: “And what does
your husband says about this?” or “That’s too bad, we need another player for our football team [i-e not a
woman]” (Interview conducted on 5 January 2016).
3.2 Sexual harassment and lord-vassal relationship
Moving up a level in the hierarchy within the Judiciary, the forms of domination over clerks though
are more clearly based on gender distinction given that they include a dimension of sexual harassment,
the regularity of which could not be measured. The expectation of sexual favours might have been the
exception rather than the norm, it cannot be though passed over in silence in order to understand the
gendered configuration of authority within the Judiciary.
Magdalena told me about her experience during our fourth interview, a year and a half after we had
first met, when we were going over her career and the fact she had worked “a merito” for six years (a
record) prior to being awarded a permanent position. In 1995, when she was 25 and working as a
replacement receptionist at the court of Appeal in Valparaíso, she was called to the office of one of the
court judges, which was not at all normal. Once the door was closed the man, who was about 55, asked
her: "how come you don't have a permanent position? To which she replied "I don't know, Your Honour,
probably because there are a lot of us waiting for an opening". "I can help you," he said, coming up to her
and stroking her hand in an unambiguous manner. "You are mistaken," Magdalena replied, before leaving
the room and not mentioning the episode for years afterwards so as to avoid any reprisals against herself
or her mother, who was also a clerk with the Judiciary (interview carried out on 24 November 2014).
It is significant that in the old court system an agricultural metaphor was used to refer to lower court
judges, known as the “estate owner” (el dueño del fundo) in reference to their extensive prerogatives and
authority, which was not limited to matters of jurisdiction. The social stratification and economic
organisation of the courts, and even Chile's criminal and civil codes, all bear the traces left by the
10 Jeanne Hersant Universidad de Playa Ancha Facultad de Ciencias Sociales/Centro de Estudios Avanzados Valparaíso, Chile Fondecyt Iniciación n°11121171 landowning organisation stemming from the period of Spanish colonisation, with the country having been
largely shaped by and for the great landowners since the 17th century. There was a racial and sexual
dimension to the traditional domination exerted by the Spanish colonisers, and then in their wake by the
great landowners (both those who were descendants of the colonisers and 19th-century European
migrants). Custom entitled them to solicit and obtain the sexual favours of their female native employees,
with the tacit consent of their partners, who were under the protection of the lord and thus subject to his
will (Salazar 1990: 59, cited in Montecino 2010: 57).
3.3 Being a female rapporteur in the Court of Appeal
A female judge’s account of her experience as a court reporter with the Court of Appeal in the early
2000s and of one of her colleagues who still works there includes mention of how they were humiliated
by judges (who used to throw books at reporters’ head, clearly displayed their lack of interest in reports,
etc.) as well as the occasional but unambiguous sexually connoted joke against female court reporters:
“You had better not being a rapporteur for too many years, it was slavery…” (Interview conducted on 10
December 2014).
Mariana, who is about five years younger and still works as a rapporteur in a Court of Appeal, has
another vision of the trade and does not talk very openly about the situation of females in the past. She
mostly comments on the present situation: “Unlike the situation in the 1990s, now we are a majority of
women, there are 10 women out of 12 rapporteurs. I think the judges like best the way we – the women –
do the job”. She explains she never recounts a file the same way, depending on the subject and depending
on the courtroom she is assigned to:
“Judges have their little ways. For example, I know that if I am assigned to the courtroom number
four, I should certainly not give details on the investigation’s pieces. There, the judges just want a
presentation of the different stages of the procedure and the sentence. On the contrary, in another
courtroom, they will ask me how many witnesses there were at the trial, how they were chosen, etc. (...)
Some judge will want to know the jurisprudence about the issue, some others will consider it an offence
11 Jeanne Hersant Universidad de Playa Ancha Facultad de Ciencias Sociales/Centro de Estudios Avanzados Valparaíso, Chile Fondecyt Iniciación n°11121171 to their freedom of judgment”. Knowing these specificities of each courtroom (a team of four judges is
assigned to each court every year), Mariana can adapt her presentations. On this very aspect of the trade,
she finds a great difference with her male colleagues, whom she had the opportunity observe on several
occasions whilst being rapporteur “de pleno” (who coordinates and supervises the others): “They recount
exactly the same way no matter the courtroom and the judges in front of them: they organize their
presentation according to what they think the best way is, not according to what the judges who are
listening to them think the best way is”. According to Mariana, this difference of perspective about the
work to accomplish and the related expectations is a real distinctive feminine feature of the job (interview
conducted on 11 April 2016).
CONCLUSION
The fact that there were frequently no formal contracts, or else even when they did exist the
predominance of relationships based on direct loyalty, implied on the one hand the obedience of clerks,
and the judges’ obligation to protect on the other. It was a lord-vassal type relationship subject to norms
laid down by custom.
The process of judicial reforms impulsed with the Criminal Procedure Reform, greatly changed the
sociology of the Chilean Judiciary. The number of lower court judges rose from three hundred and
seventy-six in 1999 (Couso and Hilbink 2011) to one thousand three hundred and thirty-three in 2014
(Poder Judicial 2014, 5). Unlike the former years, the judicial career began in the 2000s to be attractive,
because of the post creations and the important salary increase. More women have entered the institution
too (although I could not access data concerning the sex distribution of judges and its evolution during
time). My hypothesis is that there probably were a feminisation of the profession which allowed changes
in the patterns of gender relationships within the courts. Beyond the sex distribution factor, it is probable
too that the delegitimising of the lord-vassal relationship typical from the inquisitorial judicial system
softened the gendered role distribution in the Judiciary.
12 Jeanne Hersant Universidad de Playa Ancha Facultad de Ciencias Sociales/Centro de Estudios Avanzados Valparaíso, Chile Fondecyt Iniciación n°11121171 References
Alvear, Soledad, Blanco, Rafael. 2010. Diálogos sobre la reforma procesal penal. Gestación de una
política pública. Santiago: Ediciones Universidad Alberto Hurtado.
Azocar, María José and Myra Marx Ferree. 2015. Gendered expertise. Gender & Society 29 (6): 841-862.
Baker, Randall (ed.). 2002. Transitions from authoritarianism: the role of the bureaucracy. Westport:
Praeger.
Barozet, Emmanuelle. 2006. « El valor histórico del pituto: clase media, integración y diferenciación
social en Chile ». Revista de Sociología 20: 69-96.
Flores, Álvaro. 2014. El Poder Judicial y las Actas. El Mostrador, November 25.
Hilbink, Lisa. 2007. Judges beyond politics in democracy and dictatorship. Lessons from Chile.
Cambridge: Cambridge University Press.
Matus, Alejandra. 1999. El libro negro de la justicia chilena. www.e-libro.net
Montecino Aguirre, Sonia. 2010. Madres y huachos. Alegorías del mestizaje chileno. Santiago: Cataloña,
5ta edición.
Pinto, Josiane. 1990. « Une relation enchantée. La secrétaire et son patron ». Actes de la recherche en
sciences sociales 84: 32-48.
Salazar, Gabriel. 1990. « Ser niño ‘huacho’ en la historia de Chile (Siglo XIX) ». Revista Proposiciones
19: 55-83.
Weber, Max. 1978. Economy and Society. An outline of interpretive sociology. Berkeley, Los Angeles,
London: University of California Press (Part I, Chapter 3).
13 Jeanne Hersant Universidad de Playa Ancha Facultad de Ciencias Sociales/Centro de Estudios Avanzados Valparaíso, Chile Fondecyt Iniciación n°11121171 Annex
The CPR introduced new courts, with the adversarial system following an oral procedure, unlike the
inquisitorial system based on a written procedure. It also sought to bring about the professionalization of
judges and court clerks, and to rationalise the criminal procedure. It was just as much a matter of putting
an end to human rights abuses within an opaque and cumbersome procedure, as it was one of reducing the
discretionary power of court employees resulting in the phenomenon of coima (bribes). This reform
consequently led to major changes in the way justice is delivered and administered.
The CPR was progressively implemented across all the regions in Chile, starting in 2000 in the
regions of Araucania (with Temuco as its regional capital) and Coquimbo (with La Serena as its regional
capital) and finishing in 2005 with the region of Metropolitan (in the centre of Chile, capital Santiago). In
the region of Valparaíso, where the second part of the survey presented here was carried out, the reform
started to be applied in 2003. In practice, though, two criminal justice systems largely incompatibles have
coexisted in Chile since the implementation of the CPR,16 with an inquisitorial system set up during the
period of Spanish colonisation based on the principle of guilt, and an adversarial system based on
safeguarding defendant rights and the presumption of innocence. The Army was indeed “deeply
suspicious of a democratically created body […]. They did not want the public prosecutor to be able to
carry out criminal investigations, and expressly requested that human rights cases [under the dictatorship]
still be subject to the old [inquisitorial] system” (Alvear and Blanco 2010, 78-79). On the other hand,
human rights organizations and certain sectors of the Concertación were unhappy that the CPR provided
for the possibility of dismissing proceedings for this type of case (ibid.). These were the circumstances
under which constitutional reform no. 19.448 of 20 February 1996 was passed, stipulating that “[the
organic constitutional law creating the Office of Public prosecutor] shall be able to establish different
dates for when its provisions come into effect, and decide on its gradual application in various matters
and regions of the country” (Alvear and Blanco 2010, 104). That is why, despite being destined to
disappear, the inquisitorial system is still in operation sixteen years after the reform.17
14 Jeanne Hersant Universidad de Playa Ancha Facultad de Ciencias Sociales/Centro de Estudios Avanzados Valparaíso, Chile Fondecyt Iniciación n°11121171 From a formal point of view Chilean citizens remain equal before the law, since the criminal code
itself went unaltered. A law also makes it possible to incorporate new elements from the criminal
procedure within the inquisitorial system whenever this benefits the litigants or the accused. But in
practice two Chilean citizens can find themselves confronting two opposed justice systems for the same
offence, depending upon their place of residence and the date of the offence they are charged with or for
which they are seeking redress. In the Metropolitan region, for example, all criminal cases based on
offences committed prior to 2006 – such as cases of sexual abuse or violations of human rights under the
dictatorship – are automatically judged under the old system.
Tables
Figure 1: The principles underlying the transformations to criminal procedure
The defence plays a marginal role in the The lawyer presents the defence in
procedure.
INQUISITORIAL JUSTICE SYSTEM
The plaintiffs never meet the judge during
Written procedure, no courtroom
the procedure, nor frequently do the
symmetrical manner to the charges.
ADVERSARIAL JUSTICE SYSTEM
The judge indicts, arbitrates discussion
Oral confrontation between the parties
(with evidence being presented in a
defendants.
The judge controls the entire process
public debate), and issues the ruling.
The bringing of charges, defence, and
investigation are dissociated
The investigative process is secret, and The
Public
lawyers do not have access to the case file Público
during this phase of the procedure.
or
Prosecutor
Fiscalía)
(Ministerio
conducts
the
investigation, coordinating the action of
the various services involved (the police,
civil registry, forensic medical service,
and police forensic service) and presents
the charges.
15 Jeanne Hersant Universidad de Playa Ancha Facultad de Ciencias Sociales/Centro de Estudios Avanzados Valparaíso, Chile Fondecyt Iniciación n°11121171 Figure 2: The internal organisation of inquisitorial courts
INVESTIGATION STAGE (SUMARIO)
RESOLUTION STAGE (PLENARIO)
Investigation, hearing of witnesses, constitution of The case changes room and different clerks verify
the case, first formulation of ruling.
that the case has been correctly investigated.
This stage is secret, and the defence do not have The accused can challenge the investigation of the
access to the case file.
case, via the intermediary of his lawyer, prior to
final sentencing.
The case may be investigated without any time At this stage the court has to respect time limits to
limits.
respond to challenges and issue the formal ruling.
1
An official with the Judiciary since 1965 working in the financial and administrative department, which became the
Corporación Administrativa del Poder Judicial (CAPJ) in 1990, and head of the ANEJUD ever since 1995. 2
This
grade
also
includes
lawyers
and
judicial
officers:
http://www2.poderjudicial.cl/pjud/modulos/Transparencia_InfoPubl/Concursos/vacantes.php 3
“It was not until 1901 that a judgeship was established in each department of more than 30.000 inhabitants” (Hilbink 2007:
53).
4
All first names have been altered.
5
The CAPJ was set up shortly before the reform to criminal procedure, and is an entity which "administers human, physical,
financial, and technical resources for the Judiciary”. Source: http://www.pjud.cl/capj (consulted on 25 April 2015).
6
For an account provided by a judge, see the memoirs of Juan Guzmán (2005).
16 Jeanne Hersant Universidad de Playa Ancha Facultad de Ciencias Sociales/Centro de Estudios Avanzados Valparaíso, Chile Fondecyt Iniciación n°11121171 7
Who was a clerk from 1974 to 2006, and has been a court official since 2007 in a Juzgado de Garantía in the Metropolitan
region.
8
Many offices are obtained through “compadrazgo”, i-e mutual exchange of favors based on networks of family or friendship
(Barozet 2006).
9
Interview conducted on 06 July 2012 with Luisa, an “actuaria” from 1979 to 2014 in the Metropolitan region. She said she
had not wanted to sit the exam to work in the adversarial system and remained at an inquisitorial court until she retired.
10
Interview conducted on 5 April 2013 with Magdalena, an “actuaria” from 1995 to 2003, and now an official in a Guarantee
Court in the Valparaíso region. Before being awarded a permanent contract she had intermittently worked "a merito” over a
six-year period running from 1990 to 1995. She alternated between “a merito” (unpaid) periods of work and paid
replacements, which was a way of generating loyalty amongst “meritworthy” employees without any official status
11
Interview conducted on 18 March 2012 with Carla, an “actuaria” from 1974 to 2000 in the Metropolitan region. She had co-
opted her partner after a couple of years.
12
Who was a clerk from 2005 to 2011 in an inquisitorial labour court without being appointed to a permanent position, and
since 2011 an interim official in various reformed criminal courts in the Valparaíso region. Interview conducted on 11 August
2014.
13
Who was a clerk from 1971 to 2004 (including six months "a merito”), and then an official in an Oral Court in the
Valparaíso region until she retired in 2014. Interview conducted on 9 July 2013.
14
Given the state of the corpse, this episode made it possible to prove that the military was using a large-scale strategy of
torture operations, before dumping the bodies out at sea so as to get rid of any trace of torture and dispose of proofs relating to
how political opponents were disappearing (Guzman 2005).
15
The town of Viña del Mar is joint administrative centre of the geographical jurisdiction along with Valparaíso, meaning that
officials and judges working in the courts of these two towns receive a higher salary.
16
The justice system in Chile is divided into the following jurisdictions: criminal, family, labour, civil, and military law. The
same reform was subsequently applied to labour law, and is currently being extended to civil law.
17
There are still inquisitorial courts (Juzgados del Crimen) in Santiago. Elsewhere ongoing cases are judged by civil tribunals,
which still function under the inquisitorial system.
17