EL BLOG DE LA FIIAPP. Cooperación Española

Public Defender’s Offices are key stakeholders in Latin America, for guaranteeing access to justice for incarcerated people and ensuring that they can exercise their fundamental rights. What are the main challenges to ensuring that the region’s Public Defenders are able to exercise an effective public defence?

These fall under three categories. Conceptually, although it may initially seem contradictory, Public Defence is not a support service for poor people. It is the representation of the legal protection that the State must guarantee as a basic right. Presenting it in any other way allows the State to shirk its responsibility and directly affects equality before the law, especially for the most vulnerable.

The next dimension refers to institutional aspects. The technical independence of defenders and the institutional autonomy that ensures this independence, funding, resources for hiring and training, salary equivalence with the other parties involved in the system, the capacity and funding to conduct in-house research, the provision of infrastructure that allows clients to be assisted in a suitable manner and information technologies that ensure a defence on equal terms with criminal prosecution.

Finally, the qualitative dimension aims to ensure defence standards and a system that monitors compliance with them. Public Defenders in the Americas and the Caribbean have made significant progress in this regard through AIDEF. If we did not take this aspect into account, we would be providing lawyers who would have no way of effectively representing the interests and rights of the defendants.

The EUROsociAL+  action in the area of justice is oriented towards expanding and strengthening the coverage of the assistance services provided by Public Defender’s Offices in order to humanise and dignify attention to people in vulnerable conditions. Which vulnerable groups face the greatest obstacles to accessing justice due to the limited recognition of their status?

The situation in Latin America shows us that native peoples, migrants and the prison population are the most vulnerable when it comes to their dignity and rights. The same is true for young people, women, especially those who are in prison, the LGBT population, and disabled people.–– All of them are linked by the main factor involved in vulnerability and discrimination, poverty.

At the regional level, EUROsociAL+ works in close collaboration with the Inter-American Association of Public Defenders (AIDEF), supporting progress in building common strategic reference responses and frameworks for regional public policies, the adoption of joint agreements, declarations and guidelines and the development of protocols or other common products. What is the added value of networking for the Latin American Public Defenders?

Firstly, defending the full validity and effectiveness of Human Rights and the guarantees recognised in international agreements on the subject, which is also one of AIDEF’s objectives. Acting together in a coordinated manner has a real impact on debates that it would be difficult to sustain in isolation. It allows a permanent, inter-institutional system for the coordination and cooperation of Public Defenders to be established with the aim of raising the standards of each individual defence system.

Finally, acting as a network within the framework of the Inter-American System for Human Rights notably increases the leverage of the defence institutions that succeeds in lessening the structural deficiencies that many of them have.

We are currently working with AIDEF on diagnosis and action guidelines for Public Defenders in cases of institutional violence so as to respond to cases of torture or institutional violence in prisons. According to recent diagnoses, despite the fact that more than 30 years have passed since the signing of the International and Inter-American Conventions to prevent and sanction torture, there are still major challenges in Latin America when it comes to institutional violence. Do you think that the general public in Latin America is aware of the scale of the problem of torture? How could this issue be tackled in the work done by Public Defenders?

This is a profound issue. After successive dictatorships in the region, it has been difficult to deal with serious human rights violations in democratic governments, whether that is identifying them, confronting them or even calling them by name, as it is the case with torture.

It is undoubtedly an issue on which we have taken the lead because the most frequent cases of institutional violence and torture occur at the two ends of the criminal justice process. At the beginning, following arrest, on police premises, and at the end, after a prison sentence has been handed down, in prison.

Through the projects we have carried out with EUROsociAL+ we have managed to position the issue, with the incorporation of the debate in the Inter-American Human Rights System (SIDH), through the General Resolutions of the General Assembly of the Organisation of American States (OAS) and plenary hearings of the Committee on Juridical and Political Affairs of the same institution, among other instruments.

All this has allowed the subject of imprisonment and its consequences to permeate the internal debate, along with the excessive use of provisional detention (whether as punishment in advance or as a social control mechanism), imprisonment as a central element of sentencing in the region, and in particular the institutional violence and torture in prisons that occur under these circumstances.

Finally, given the diversity of the actors involved in the area of justice and the fact that these are multi-dimensional problems, what mechanisms/instruments could be set up to improve inter-institutional and inter-sectoral coordination to implement access-to-justice policies?

Rather than creating or implementing new mechanisms or instruments, what is needed in Latin America at the moment is to consolidate and improve the existing channels to bring about good inter-institutional coordination. Strengthening the work between institutions in the area of justice and training the participants while promoting collaborative working.

This is because one of the problems we face is a lack of trust in the institutions of the justice system, not only on the part of the public, but also from those who are involved in the system.

María Luisa Domínguez, Senior Technician in Democratic Governance in the EUROsociAL+ Programme

 A year since the signing of the Colombian Peace Agreements, we went to Bogotá to interview the city’s former mayor, Professor Antanas Mockus, a big defender of the national reconciliation process and a leader in changing collective behaviour through education, including behaviour related to paying taxes.

During his terms as mayor, Bogotá underwent a transformation in its tax culture, as its citizens began to notice a relationship between taxes and an improvement in public services. This led to feelings of a shared responsibility for funding development that were based on conviction rather than on the fear of being sanctioned. ‘Todos pagan’ [‘We all pay’] and ‘Recurso público, recurso sagrado’ [‘Public resources, sacred resources’] were some of the slogans coined by Mockus, who also promoted a campaign called ‘110 por ciento con Bogotá’ [‘110 per cent with Bogotá’], which appealed for a voluntary 10% tax increase, with a chance to choose the project the money would go to.

What role do taxes pay in post-conflict Colombia?

The peace process that Colombia is going through has many aspects. One of these is avoiding the use of the force of arms to implement changes. The State must reach the country in a much more substantive way, but the public must also play their part. The public must learn to understand how the State works, how the State reallocates resources for purposes that are usually much more admirable than private spending; it would not make sense to collect taxes to do things that are not as good.

The social rule of law established by the Colombian Constitution of 1991 establishes that one of a citizen’s duties is to pay taxes. However, this duty is associated with the State’s duty to protect citizens’ rights. But rights cost money. There is a book by an American academic named Stephen Holmes entitled ‘The Cost of Rights’, which asserts that a right cannot be guaranteed if no resources have been invested in defending that right.

Colombia is in debt in terms of socio-economic inequality and taxes must be understood to be part of the tools that we have for levelling the playing field and creating more equality. We hope that FARC and the ELN, if they join the peace process, will participate in this learning process and understand the enormous importance of redistribution mechanisms. It is essential to go through the tax system, which is the only method of wealth redistribution open to a democratic government. Redistribution must be understood not only as a way of sharing out resources but also as an essential part of human relations. Public resources are sacred resources.

How can a country’s tax culture be changed?

I have an anecdote about a Colombian who is working and studying in the United States. At breakfast, he tells an American friend: “Last night I found a way to avoid paying taxes”, and he then explains his scam. And the American says: “I’ll give you 24 hours to put that right or I’ll report you”.

The mafia culture is associated with a code of silence. In the mafia culture, the social norm is more than simply not complying with legal regulations, breaking the law becomes part of your obligations.

For a while, I thought that corruption was something it would be very easy to resist, just by saying no, but then I met mayors who had been threatened with violence for not cooperating with criminals. As a result, the combination of the code of silence with the use of violence against those who do not allow themselves to be corrupted generates an illness that is slightly more difficult to deal with, but it is one that needs to be treated all the more urgently.

When you buy a tin of paint at a hardware store in Colombia, you are still often asked whether you want it with or without VAT, with or without a receipt, which is an implicit or explicit offer to not pay sales tax.

This has a decisive influence on the public’s attitude toward taxes…

The field of behavioural economics has found that as humans, we are very risk-averse. If you lose 10 euros and find 10 euros, you won’t be happy; from a psychological point of view, you’ve suffered a loss. You would need to find 27 euros. Losses are seen through a magnifying glass. If you see taxes as a loss, you suffer disproportionately; but it is different if you see them as a contribution, a bit like putting money into a kitty, a mechanism for pooling resources to achieve common goals.

Bogotá has managed to improve people’s attitude toward paying taxes. We have also worked with the Ministry for Health to show that there are other redistribution schemes, as well as taxes. In the Colombian healthcare model, the more economically powerful classes contribute more than their proportion to healthcare and this is a clear redistribution model, because people from very different financial situations receive similar medical attention. Having the same guarantees is another expression of the social rule of law.

My experience is that if people understand what taxes are for, if they understand how the rates for the different groups of citizens work, they can understand how important taxes are. The proper management of these is, in part, the secret to the country’s development.

What is your opinion of the work sponsored by the EUROsociAL+ programme in universities with Tax and Accounting Assistance Hubs (NAFs)?

What is being promoted with the university tax consultancies is a very important step. The role of the accountant as someone who advises you how to evade or avoid taxes is giving way to a culture of a tax adviser who explains the purpose of the regulations to the public, taking on the role of educator.

Borja Díaz Rivillas, Senior Expert in Democratic Governance for the EUROsociAL+ Programme.

“When we had the answers, they changed the questions”, said Pelayo Castro referring to a graffito discovered by the Ecuadorian poet Jorge Enrique Adoum and made universal by the Uruguayan writer Mario Benedetti. This catch-phrase, quoted by the European Union Ambassador in Costa Rica at the opening of the EUROsociAL+ meeting in San José, laid the foundation for the three days of discussions and exchanges in the capital of Costa Rica.

Because, if one thing characterises EUROsociAL+, it is seeking answers to the questions raised by Latin America. The answers are to be found in Europe and in Latin America, and in Costa Rica they were transformed into reality with significant commitments to fighting gender violence, social dialogue and regional development.

Also, in this third stage of the Latin American social cohesion programme, we would like to be part of the answers. This means being more strategic, once again placing social issues on the European-Latin American cooperation agenda and contributing to ensuring that countries meet the Sustainable Development Goals. This is why we demanded even more strongly that actions be implemented to support public policies that have a real effect on reducing the inequality gap in the region.

The initial meeting was not only inspiring because of the discussions, it also presaged an unforgettable cultural moment that occurred during the first annual meeting of the third stage of EUROsociAL. Creativity laboratories gave a voice to the different realities existing in the Latin American countries through children and young people at risk of exclusion, the struggle of the LGBT community, and the situation of those who are in detention, who, through poetry, painting and photography expressed their wish to be part of a society that offers them the same rights and the same opportunities as anyone else.

It was a meeting filled with symbols, from the word Freedom, which was the name given to the Metropolitan Park where the meeting began, to the former prison known as “La Peni”, which has now become the Children’s Museum and which we visited on the occasion of Universal Children’s Day. The best way, therefore, to end these lines is the prologue written by Kennly Garza, subdirector of the Vilma Curling Comprehensive Care Centre, for the book of poems written by the inmates of this prison, entitled “Luna compartida” (Shared Moon). In the prologue, entitled “Alquimistas de significados” (Alchemists of meaning), Kennly calls our attention to some of these allegories: “A women’s prison is an uncomfortable, antagonistic place; the unsuspected arrival of cherubim brings on a smile. At the back, the whispers of five hundred writers disturb our conscience when we know we are part of these stories. A scene of losses and grievances, it is also an island of warrior women whose stories deserve to be told before the River Cañas claims its own. Until then, here is the tribute of their words, transparent and direct, warning that while there are women in prison writing about inequality, talking about freedom will never be easy or commonplace, it is an urgent debt that only applause does not endorse”.

Enrique Martínez is the communications manager for the EUROsociAL+ programme

When Margarita went to her Social Security hospital in El Salvador for her regular type 2 diabetes check-up, her medical record had disappeared. After hours of fruitless searching, she went in to see her doctor with a temporary (empty) file so that he could prescribe the appropriate medicines. Due to the lack of medical information, the doctor told her that he could not prescribe her glimepiride, one of the key drugs for treating her diabetes, until he had some accurate analyses of her medical condition. Margarita had to wait almost a month to get the result of the new clinical analyses, without receiving proper medication in the meantime. After nearly three months, the file was finally found, surprisingly, among the records of those who had died.

Managing medical records properly is essential for improving the treatment of patients and the exercise of their rights, as well as the effective and efficient functioning of the healthcare system. However, this is a daunting task that requires confronting huge challenges, such as a lack of storage space or human and financial resources. At the same time, the patients’ personal details must be properly protected and the complex process of transferring the files from a paper format to an electronic one must be carried out in stages.

Well aware of the pressing need to tackle this issue in El Salvador, the Institute for Access to Public Information (IAIP), the Ministry of Health (MINSAL) and the Salvadoran Institute of Social Security (ISSS) have joined forces with the aim of building the foundations for a new era in the management of medical records in this Central American country’s public healthcare sector.

The EUROsociAL+ Programme, funded by the European Commission and managed by the FIIAPP, is helping El Salvador with this process. As a first step, between 25 and 28 September, representatives of the three Salvadoran institutions visited Madrid to find out about the progress made and the challenges faced by Spain in this area. For a week, they were able to exchange experiences and lessons learned with the Ministry of Health, Equality and Social Services, the Castilla-La Mancha Health Service (SESCAM), the Community of Madrid’s Hospital Clí­nico San Carlos, the Ministry of Education, Culture and Sports General Sub-Directorate of State Archives and the Spanish Data Protection Agency. The visit included a tour of the Hospital Clí­nico San Carlos archives and the Central Archives of the State Administration in Alcalá in addition to a presentation of the lessons learned from the Tunisian electronic file project headed by the FIIAPP and funded by the European Union.

This activity was the first step in promoting inter-institutional dialogue in El Salvador, advancing toward creating operating instructions and new regulations, and promoting cultural change, which is needed in order to improve the quality of healthcare in this Central American country.

Borja Díaz Rivillas, Senior Officer of Democratic Governance. EUROsociAL+

In El Salvador, few topics go as unnoticed in public and media agendas as the management of medical records. The irony is that these documents contain sensitive personal information on the health of thousands of people that should be protected with the highest quality standards. This issue is even more important in the public healthcare sector (Encuesta de Hogares de Propósitos Múltiples (Multi-Purpose Household Survey) 2014, DIGESTYC-MINEC).

Between January and March 2017, the Institute for Access to Public Information (IAIP) carried out a series of interviews with key staff in the Ministry of Health (MINSAL) and the Salvadoran Social Security Institute (ISSS) to gather preliminary information on some aspects of document management and personal data protection. The information will help the IAIP, as the governing body in this area, to issue guidelines regarding these matters. A complex reality was revealed by these first interviews.

In terms of standardisation, at least six documents were found that contain different criteria for handling medical records. However, there is no standard management process for the entire public sector. For example, filing documents has become a problem that is literally overwhelming the public health system. Although it is not the same at all care centres, there are warehouses in which these documents are stored with no other criterion than their weight in kilos.

Another finding was that there is little or no knowledge about ARCO rights (Access, Rectification, Cancellation and Opposition to information). On the one hand, there are healthcare operators that do not guarantee full exercise of these rights and, on the other, users who do not demand them. But how to demand a right that is not known by those who must guarantee it?

In the interviews, challenges in managing medical records appeared one after another. Almost all the interviewees agreed on the need to migrate to single electronic formats. Something that, among other benefits, would permit the interoperability of the information. In other words, having access to the medical history of a patient for an operation from wherever he or she might be. But although there are ample arguments in favour, the possibility of migrating collides with another reality: Implementing this would require a significant financial investment. Preliminary data, provided by both institutions, show that this would be an investment of approximately $40 million. But, even in a favourable scenario, standardising management does not end with migrating to an electronic format. In fact, whatever action is taken to implement it, at least two initial challenges must be faced.

Firstly, standardising the documentary management and personal data protection of records that are currently kept on paper. In other words, what to do with what there is. Secondly, a commitment by all those involved in managing these documents, apart from the MINSAL operators.

The IAIP, as the body governing document management and personal data protection, could simply issue guidelines and verify that they are complied with. But is this what interests us? Delimiting our involvement in these two actions would mean denying an extremely complex reality that finds expression in many dimensions. The management of medical records, in this case in the El Salvador public health sector, requires, first of all, an in-depth institutional dialogue that will permit the design of a path toward the necessary changes. To do this, it is also necessary to know how similar processes were developed in other countries in Latin America and the European Union. Otherwise, however well-designed the regulation is technically, it would not be sustainable over time.

Alicia Miranda Duke is the head of studies and research at the Institute for Access to Public Information (IAIP) in El Salvador

No country or community can function peacefully if its inhabitants are unable to assert their rights in an established system of justice or defend themselves against accusations brought against them. Access to justice by citizens is based on legal guarantees that take into human rights consideration.

Nonetheless, in reality we face numerous difficulties in applying them in a practical and effective way. And, regrettably, when this is the case we see the natural consequences – greater levels of social inequality or high rates of violence – which are often attributed to other factors, such as poverty, when in reality poverty is not a cause but rather an effect, and precisely an effect of the fact that, among other factors, many people are excluded from justice.

The mechanisms for accessing justice should be designed for citizens in general, they should be properly contemplated at the legislative level, and they should also be given the necessary resources to function adequately. Some countries have a more pressing need for cooperation in order to address these needs.

For those of us working to defend the rights of citizens, it is very difficult to not see the tremendous challenges worldwide facing people with disabilities, displaced people and refugees, minorities, victims of trafficking and exploitation, persons deprived of their liberty, and people living in endemic poverty. We are talking about hundreds of millions of people.

The General Council of Spanish Lawyers, through its participation in cooperation actions, often focuses on working to ensure that the most vulnerable groups have access to protection of their rights through the justice system under the same conditions as their neighbours.

We have successfully undertaken numerous projects of this type in some European countries and, above all, in Latin America. We might highlight, for their representativeness, some implemented in collaboration with FIIAPP within the framework of European cooperation programmes such as EUROsociAL.