OECD Justice Review of Peru

4. Governance and management for a transparent and independent judicial system in Peru

Abstract

This chapter focuses on the structure and functioning of Peru’s judiciary system and compares it with OECD Member countries. It deals with the governance of the judicial systems, the institutionalisation of judicial self-governance arrangements underpinning independent judiciaries, court management and mechanisms for protecting the independence and impartiality of sitting judges. It also highlights the administrative justice system in Peru, which is one of the main safeguards of the rule of law and protection of private investments and economic development in OECD Member countries. Finally, it analyses key aspects of the judiciary's management, such as human resource management, including budget, selection and appointment of judges, discipline and integrity, and gender parity within the judiciary.

4.1. Introduction

The principle of judicial independence is given effect through the ability of judges and courts to perform their duties and administer justice with impartiality, free of influence or control by other actors; it also finds expression in the capacity of the judiciary as an institution to function autonomously, without the interference of other branches of government. Judicial independence is critical to maintaining the integrity of the judiciary and the transparency of the judicial function as hallmarks of the rule of law and equal access to justice.

External independence refers to independence from the legislative and executive branches, as well as other forces. Internal independence refers to individual judges – whether judges are influenced by their colleagues and superiors. This chapter analyses how Peru has enforced judges’ independence, detects the main bodies and practices that can interfere with it (such as the Ombuds Office or the National Board of Justice, judges’ appointment or temporality, renewal, performance and remuneration), and compares it with OECD Member experiences.

This chapter also highlights the importance of implementing judicial decisions against public authorities as a mark of judicial independence and as a guarantor of the respect of the rule of law in the country for the people of Peru. Then, it assesses the budgetary allocation process in Peru and negotiations between the justice sector and the Ministry of the Economy and Finance (MEF) and how this budgetary process can limit the efficiency of the justice system.

Finally, this chapter refers to the Commission on Gender Justice (Comisión de Justicia Género) and highlights the important advancements made towards gender equality and achieving gender parity in the justice system towards a more inclusive and representative governance and management of the Justice system.

4.2. Institutionalisation of judicial self-governance: The pursuit of an independent justice system

4.2.1. Judicial independence

Judicial independence in OECD Member countries

Chapter 2 underscored that in OECD Member countries, judicial independence emanates from and constitutes a fundamental hallmark of the rule of law. An independent judiciary is necessary to ensure that public authorities are subject to the law and that the abuse of power and the arbitrary application of the law are constrained.

Judicial independence is at the heart of various international standards (e.g., the UN 1985 Basic Principles for the Judicial Independence, the European Convention on Human Rights [art. 6] and the Inter-American Convention of Human Rights [art. 8]), which enshrine the fundamental human right to be heard by an impartial judge predetermined by the law.

Judicial independence of a sitting judge adjudicating based on law (i.e., internal independence) can also be understood as the absence of undue influence. The principle of judicial independence has been recognised and given expression in several international legal instruments, such as the Universal Declaration of Human Rights (General Assembly Resolution 217 A, 10 December 1948); the American Convention on Human Rights or Pact of San José (OAS, 22 November 1969), ratified by Peru in 1980; the International Covenant on Civil and Political Rights (United Nations General Assembly Resolution 2200 A, 16 December 1966), ratified by Peru in 1978; and the Basic Principles on the Independence of the Judiciary adopted by the United Nations General Assembly on 6 September 1985.

To safeguard judicial independence, including from overreach by other branches of government, different institutional, legal and operational measures have been designed, including procedures for the appointment and promotion of judges, the introduction of councils of the judiciary to manage the career of judges, the concept of judicial tenure, the financial, administrative and management autonomy of the courts, and frameworks governing judicial conduct and discipline. For example, many OECD Member countries have created Councils of Judiciary or their equivalents to ensure the self-management of the judiciary and the effective delivery of justice. These councils and their equivalents are autonomous bodies independent of the executive and legislative branches. In addition to safeguarding judicial independence, some councils were established to improve the quality of justice and assist judges in adopting new forms of accountability in court administration. This was achieved by transferring responsibilities from the executive (from ministries of justice) to the judiciary itself to prevent the politically motivated staffing of judicial offices (Table 4.1).

Table 4.1. The main responsibilities usually assigned to judicial councils

Main matters	Content
Personnel	Selection of judges, promotion, discipline, impeachment, dismissal relocation/reassignment, salaries and perquisites of judges
Administration	Work schedules, the composition of panels, initial case assignment, case reassignment, case load quotas, court performance evaluation, case flow, setting the number of judges per court, setting the number and process of hiring law clerks, setting the number and process of judicial personnel, transfer of jurisdiction, processing complaints
Financial	Setting the budget for the judiciary, the budgets for individual courts, allocation of budgets within courts, non-monetary support for courts (e.g. law clerks)
Education/training	Training of judicial candidates, of judges, organising and attending conferences, funding of continuous education, compulsory education, or training
Ethical	Adopting judicial ethics standards and codes of conduct
Information	Transparency mechanisms, recording trials, publishing judgements, financial disclosure, personal data protection
Digital/ICT	Administration of files and judgements (data storage, etc.), Internet access, e-justice
Regulatory	Review and promote amendments to the rules of procedure/civil, criminal administrative, etc.) and to the courts’ statute

Source: OECD, drawn from Kosar, David (2018), “Beyond Judicial Councils: Forms, Rationales, and Impact of Judicial Self-Governance in Europe (1 December 2018)”, German Law Journal, Vol. 19, No. 7, https://ssrn.com/abstract=3459367.

While the existence of a judicial council guarantees neither judicial independence nor judicial accountability, international standards for preserving the independence of the judiciary through judicial councils have been codified. For instance, the Council of Europe adopted a recommendation on judicial independence in 2010 (Box 4.1) (Council of Europe, 2010[1]).

Box 4.1. Recommendation on judges: Independence, efficiency and responsibilities

Councils for the judiciary

The recommendation defines judiciary councils as independent bodies established by the constitution, which seek to safeguard the independence of the judiciary and individual judges and thereby promote the efficient functioning of the judicial system (para. 26). It establishes that judges that consider their independence threatened should have the possibility to recourse to a judiciary council or another independent authority (para. 8). No less than half of the members should be judges chosen by other judges from all levels of the judiciary (para. 27); these appointments should be transparent towards judges and society by the establishment of pre-established procedures (para. 28); in the exercise of their functions, they should not interfere with the independence of individual judges (para. 29).

Source: (Council of Europe, 2010[1]), Recommendation CM/Rec (2010)12 of the Committee of Ministers to member states on judges: independence, efficiency, and responsibilities, adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers’ Deputies, https://rm.coe.int/cmrec-2010-12-on-independence-efficiency-responsibilites-of-judges/16809f007d.

The pursuit of independent judiciaries has taken various forms beyond the creation of judicial councils. Some countries have also established court administration authorities, usually under the management of ministries of justice. This plurality of governance arrangements aims to preserve the independence of courts, the efficiency of the delivery of justice, as well as the accountability of judges. Judicial councils and court services (or court administrations) are the most common approaches to institutionalising judicial self-government across OECD Member countries to promote the institutional independence of the judiciary.

4.2.2. Judicial independence in Peru

In addition to imparting justice through its jurisdictional organs, as seen in Chapter 3, Peru’s Judicial Power (poder judicial) is legally entrusted with improving the administration of the justice system, notably in such areas as case management and reducing procedural caseloads (carga procesal). It does so through the Judicial Power Executive Council specifically to improve the management of the judiciary (Box 4.2).

Box 4.2. Peru’s Executive Council of the Judiciary

The Judicial Power Executive Council (Consejo Ejecutivo del Poder Judicial, CEPJ) is Peru’s judiciary governing body; it oversees the technical-administrative management of the judiciary and its local bodies.

Composition

The CEPJ is composed of six members: the president of the judiciary, who presides over it and has a simple vote and casting vote; two tenured Supreme Court judges elected by the Supreme Court; a tenured Superior Court Judge elected by the Presidents of the Superior Courts of Justice; a tenured Specialised or Mixed Tenured Judge; and a representative elected by the Board of Deans of the Peruvian Bar Association.

Main characteristics

The mandate of CEPJ lasts two years. For the designation of the Tenured Superior Court Judge, each Full Chamber of the Superior Courts chooses a candidate, and the presidents of Superior Courts, through direct suffrage, elects the member of the CEPJ. For the designation of the tenured Specialised or Mixed Judge, the specialised or mixed tenured judges elect a representative for each judicial district, who will meet to choose among themselves the judge who will integrate the CEPJ. If the President of the Executive Council is unable to fulfil their duties, the Supreme Court Judge with the highest seniority in the Council takes on the role. The Executive Council meets in ordinary and extraordinary sessions. Ordinary sessions are held four times a month, while extraordinary are called by the President or at the request of at least three members. As per their decision, the minimum number of group or organisation members that must be present for official business to be conducted is half plus one of the total number of directors. Agreements are adopted by simple majority. Unjustified absences are penalised with a fine equivalent to three days of total income and are recorded.

Functions

Administrative: The establishment of the number of tenured supreme judges and of judges of the Judicial Oversight Office, the designation and composition of commissions, the creation of management offices within the General Management office, the administration of the offices and goods at the national level, the creation and re-ubication of judicial districts, courts and other judicial offices, the assignment of processes to judges according to their specialities, reassignment of cases between the specialised courts of the Supreme Court. On appointment, the transfer of authority of the personnel, the selection of the General Manager, Managers, Heads of Office and other high-level positions, and the appointment of superior and specialised supernumerary judges from the previous list made by the National Board of Justice. On sanctions, it decides the destitution of Justices of the Peace and judicial auxiliaries. In the second instance, it decides the sanctions of fines, reprimand, and suspension established by the Judicial Oversight Office.

Budgetary: Approval of the judiciary's budget proposal (prepared and proposed by the General Management) and implementation once approved and enacted into law.

Educational: Co-ordination with the Academy of the Magistracy in the organisation of training programmes for judges.

Digital: Management and supervision of information and communication technology (ICT) and statistical mechanisms.

Regulatory: Approval of the Regulation on the Organisation and Functions of the Judiciary and other internal regulations.

Source: Texto Unico Ordenado de la Ley Orgánica del Poder Judicial (Unified Texto of the Organic Law of the Judiciary), approved by Supreme Decree No. 017-93-JUS, from July 1993; Reglamento de Organización y Funciones de la Corte Suprema de Justicia y Órganos de Gobierno y Control Nacionales (Regulation of the Judiciary), approved by Administrative Resolution (No. 000321-2021-CE-PJ, from 27 September 2021.

However, several of these functions are, in fact, shared with other bodies within the judiciary, including the Plenary Chamber and the Judicial Oversight Office, or with other institutions of the justice system, such as the Academy of the Magistracy and the National Board of Justice. This tends to generate overlap or confusion regarding the roles of each body, as mentioned in Chapter 3. This raises two issues:

• First, is the scope to clarify management responsibilities of the Plenary Chamber (Sala Plena) and the CEPJ, to reduce potentially overlapping functions. In disciplinary matters, the existence of three distinct bodies (the CEPJ, the Inspectorate of the Judiciary and the National Council of the Judiciary), each with varying or unclear rules and procedures, can lead to overlapping responsibilities (see Chapter 3).

• Second, is the scope to enhance transparency and rules governing the election of the CEPJ members. Judge’s groups and associations regularly mention that limited regulation on this matter does not guarantee a clear and transparent election process. Some of the issues mentioned include the lack of a debate for an informed vote, irregularities in the voting process, a lack of requirements governing who can be considered for election, and the absence of measures that guarantee the integrity of prospective candidates (Resolution of the Executive Council of the Judiciary of 18 August 2021) (Huaraca, 2019[2]).

This has led judges to request regulations for the election of Executive Council members. As a result, in 2021, the President of the Executive Council directed the development of a regulation on the election of the tenured Superior Judge and the Specialised or Mixed Judge as members of this council1^,2 demonstrating an overall unclear institutionalisation of responsibilities. However, even though the 2021 Regulation appears to have assigned the bulk of the management responsibilities to the CEPJ, a clearer regulation is still needed to clarify the arrangements further.

Protecting the independence of sitting judges in Peru

The principle of judicial independence is recognised in the Peruvian Constitution and developed through laws and regulations (see Chapter 3). Yet, in practice, the independence of sitting judges is not fully guaranteed. Several factors can potentially expose judges to political interference and undermine their independence.

This section describes the main challenges facing the judicial independence of sitting judges in Peru. Some relate to the human resource management system (ratification, performance appraisal, and temporality), and others with the possibility of other powers encroaching on the decision making of sitting judges (interference), notably the impact of the Ombuds Office on judicial independence in Peru

The key issues that risk undermining the internal independence of judges in Peru are:

• interference, the possibility of interference in individual judicial proceedings by other institutions such as the Ombuds Office, not merely through the universally accepted amicus curiae (an impartial adviser to a court of law in a particular case) or co-adjutancy institution, but by direct injunctions

• ratification of judges every seven years (addressed in Section 4.4 on human resources)

• performance appraisal scheme for judges every three and a half years (see Section 4.4)

• temporality, the high number of judges under temporary employment (see Section 4.4).

As seen in Chapter 2, the Inter-American Commission of Human Rights (IACHR), in handling four cases from Peru, raised concerns about Peru’s breach of the principle of judicial independence for judges or public prosecutors, as outlined in Article 8 (Judicial Guarantees) of the American Convention of Human Rights. The IACHR determined that Peru violated victims’ judicial guarantees because decisions regarding ratification, evaluation and dismissal were not adequately justified. This, in turn, infringed upon the victims’ right to know the charges against them in advance and in detail, preventing them from preparing a defence. The Court deemed Peru’s application of these mechanisms punitive, violating the guarantees of due legal process and judicial independence.

The impact of temporary employment terms for judges and prosecutors and the ramifications of ratification and performance appraisal schemes on judicial independence will be discussed below. Moreover, initiatives aimed at improving the quality and predictability of judicial sentences, particularly through the Judicial Power’s Plenary Decisions (Acuerdos Plenarios) and the Supreme Court’s Cassation Plenums (Plenos Casatorios), present challenges. These initiatives may sometimes suggest imperfect rulings, leading to concerns about the accuracy of judges' decisions. Given the mandatory nature of these rulings, there is a debate among judges regarding the potential undermining of judicial independence. These Plenary Decisions are intended to function similarly to the “sentencing guidelines” in some Commonwealth countries, like the Sentencing Council in England and Wales (United Kingdom), created in 2010, and the Sentencing Guidelines of the Irish Judicial Council (Poder Judicial del Perú, 2022[3]; 2020[4]; 2016[5]; The Judicial Council, 2022[6]).

4.2.3. The impact of the Ombuds Office on judicial independence in Peru

Peru has undertaken considerable efforts to promote integrity and accountability within the judicial system. However, some of these efforts could undermine judges’ independence. For instance:

• The regulatory framework governing the functions and attributions of the Ombuds Office (Defensoría del Pueblo) (Law 26520, 1995) enables the Ombudsperson to initiate and follow up on, by its own motion or upon request from an interested party through a complaint, an investigation that can lead to an assessment or a decision that finds an action by the public administration or its agents, including the judiciary and Public Prosecutor’s Office, to be affecting the constitutional and fundamental rights of the person or a community (art. 9[1]). The Law on Administrative Simplification (Law 25035 of 11 June 1989) includes within the public administration the executive, legislative and judicial powers, as well as the bodies endowed with autonomy by the Constitution.

• This broad definition of public administration, coupled with the extensive powers granted to the Ombuds Office, enables the Ombudsperson to interfere in individual judicial proceedings without clear restrictions. For example:

  • If the investigation is related to the administration of justice, the Ombudsperson must inform the institution of the complaint and may request from the relevant institution(s) the necessary information, which they should provide without interfering in the institution's jurisdictional activity while respecting judicial secrecy and inform the Executive Council of the Judiciary or the Public Ministry of its findings (arts. 14, 16-17). If the requested information is not provided as part of the investigation, the Ombudsperson can ask for disciplinary action against the judge or prosecutor (art. 21).

  • This has far-reaching practical implications regarding judicial independence. If a judge or a prosecutor does not comply with an Ombudsperson’s request for information or a response to a complaint, the Ombudsperson can request to initiate disciplinary proceedings against them. This could be used as a threat to their authority to decide the case's outcome or even interfere in individual judicial proceedings.

The scope of the Ombuds Office powers may also further undermine the independence of sitting judges or prosecutors in charge of a case by creating risks that the individual judges may become subject to the injunctions of the Ombudsperson, given that the Ombudsperson presides over the special commission that selects the members of the National Board of Justice (Junta Nacional de Justicia, or Junta),3 which in turn can undertake a disciplinary procedure against judges and prosecutors. Indeed, the Ombudsperson may also request that the National Board of Justice start disciplinary actions against judges and prosecutors.

Given that the Ombuds Office is one of the institutions with the best approval rating (IPOS, 2019[7]; IPSOS and Proética, 2022[8]), notably due to its advocacy work, the fear of a negative review from this institution could indirectly add pressure on a judge or prosecutor to comply with its requests. As such, Peru could benefit from a review of the Ombuds Office’s powers defined by law to clarify its scope of intervention in individual judicial proceedings. Peru could also consider reviewing current arrangements with a view to establishing key safeguards necessary to protect judicial independence while aligning Peru’s legal framework with OECD Member countries' best practices.

4.3. Budget allocation and negotiation

4.3.1. Budget allocation to the justice sector

Trends in negotiating budget allocations to the judiciary in OECD Member countries

To improve transparency, accountability and proper resource allocation among courts, some OECD Member countries (e.g. Belgium, Finland, France and the Netherlands) have implemented performance-based budgeting, which introduces performance indicators on the results that were delivered from the budget (Curristine, 2007[9]) (Box 4.3). However, in Peru courts’ budgets are still mainly drafted by considering baseline costs from the previous year. Incremental increases to court (and other) budgets year-over—year is known in Peru as inertial budgeting.

Box 4.3. OECD practices in court budgeting

In Germany, the judicial budget is part of the Ministry of Justice’s budget. The annual budget requests are based on baselines. The Ministries of Justice and Finance formally negotiate and agree upon the final budget proposal, which is then submitted to the Bundestag (parliament) for approval. Once the funds are allocated, the Ministry of Justice distributes them among individual courts. A similar process occurs in most of the Länder. As such, the judiciary does not have a formal opportunity to take part in the budget process. However, the president of each court plays a role in preparing budget proposals for their court and subsequently managing the allocated funds. In some courts, the Geschaeftsleiter is also involved in drafting the budget proposals and may be charged with the actual budget management. Budget plans are usually devised for two-year periods.

In the Netherlands, in 2016, power over the judicial budget was granted to an independent judicial council (Viapana, 2018[10]). The judiciary’s budget is no longer included in the overall budget of the Ministry of Security and Justice but stands as a separate category in the national budget. Although the Ministry is still formally responsible for presenting and justifying the judiciary’s budget request before Parliament and allocating the approved funding to the Council, the annual budget is calculated according to an objective and precise formula that takes into account the number of cases that is anticipated to be resolved during the year and the cost per case, with the input data mutually agreed upon by all the parties involved, i.e. the court management boards, the Council for the Judiciary, and the Ministry of Security and Justice. One of the major innovations of budgetary reform in the Netherlands is the autonomy of the courts, which are self-administered organisations under the supervision of the Judicial Council. Each court has its management board, which is the decision-making body in charge of the general management.

In Finland, the budgeting process is managed directly by the Ministry of Justice, which interacts with the courts. For performance indicators, the targets are based on the estimated caseload and regard the cost per case and the number of decisions per judge (person-year). Other indicators are the number of incoming cases, the length of proceedings, the number of postponed cases, the number of pending cases, the number of decisions, the caseload of judges and courts, the budgetary means of a court and the spending of the budget, and quality indicators. All these indicators are calculated based on a weighted caseload system. Differences in the case structure are considered by grouping case categories into different difficulty categories, each of which has a fixed weighting co-efficient. The co‑efficient was calculated by a working time monitoring conducted in 2009. Not only working time, but other criteria, such as the difficulty level, the number and the length of hearings necessary, or the number of judges composing the panel who takes the decision, were considered in calculating weight co‑efficients. The budget cycle begins in January, with the formulation of the budget framework by the Ministry of Finance after discussing with the Ministry of Justice. Within this threshold, the Ministry of Justice decides the amount and the guidelines for budget allocation. The Department of Judicial Administration within the Ministry of Justice conducts individual negotiations with each court president. The individual meetings take place from September to November. During these meetings, the performance of the courts, the level of accomplishment of the targets, and the forecasts for the next year are analysed. Within the budget limit imposed by the framework, each court sets the number of cases it can solve with the resources allocated.

Source: OECD own elaboration; (Viapana, 2018[10]), Pressure on Judges: How the budgeting System Can Impact Judge’s Autonomy, in Laws 2018, 7, 38, www.mdpi.com/journal/laws.

In terms of budgetary allocations to the courts in EU countries, Table 4.2 shows the average amount EU countries spent per inhabitant on courts by diverse groups of countries based on their gross domestic product (GDP) per capita in 2020.

Table 4.2. Budgetary allocations to courts in EU countries, 2020

allocations to the courts in EU countries	Per inhabitant (in EUR)	As % of GDP
Group A: < EUR 10 000	26.42	0.45%
Group B: EUR 10 000‑20 000	63.24	0.42%
Group C: EUR 20 000‑40 000	85.80	0.31%
Group D: > EUR 40 000	137.54	0.25%
Average	78.09	0.35%

Note: To facilitate the analysis, member states and entities have been divided into four groups based on their GDP per capita, Group A having the lowest. It is important to note that there are considerable differences between EU countries in the same category with respect to courts’ budgets.

Source: (CEPEJ, 2022[11]), CEPEJ Evaluation Report 2022 Evaluation cycle (2020 data), https://rm.coe.int/cepej-report-2020-22-e-web/1680a86279.

The budget of the judicial system is determined either by using population (EUR per inhabitant) or a percentage of nominal GDP as indicators for allocation decisions. The budget per inhabitant is logically higher in wealthier countries and jurisdictions. On the other hand, the same budget, standardised as a percentage of GDP, is higher in less wealthy countries, showing that most of them give priority to the justice system compared to other public services, but also that this priority represents a significant effort in their state budget (CEPEJ, 2022[11]).

Justice system budget allocation negotiations in Peru

The budget process in Peru is centralised in the Ministry of Economy and Finance (MEF), mainly under the stewardship of the General Directorate of Public Budget (DGPP) (OECD, 2023[12]). The MEF, after receiving the budget proposals from all public institutions, a negotiation process starts. The MEF then prepares the final budget proposal, which is submitted to the Cabinet for approval. The proposed budget includes the budgets across public institutions, also known as pliegos. The government’s proposed budget is then submitted to the Congress for discussion where additional negotiations are made until the Congress reaches a final decision (OECD, 2016[13]).

It is important to note that in an effort to increase the judiciary’s independence over the budget negotiation process with the MEF, the judiciary benefits from a specific status since 2006 (Law 28821) where the judiciary negotiates with a coordination commission to which the MEF is party. Indeed, once the judiciary’s budget proposal has been prepared internally by the Planning Management Office of the General Management and approved by the Executive Council of the Judicial Power, the draft budget is referred to the executive by the President of the Judiciary. It is then discussed in a coordination committee in which the President of the Judiciary, two Supreme Judges, the President of the Council of Ministers, the Minister of Economy and Finance and the Minister of Justice participate. The agreed budget proposal is then submitted by the Executive to the Congress. Despite these negotiations, stakeholders from the judiciary have mentioned that the agreed budget often do not reflect the judiciary’s initial budget request.

Box 4.4. Peruvian institutions’ budgetary approval process

In practice, there are three budgets: the PIA (Presupuesto Institutional de Apertura, or Initial Institutional Budget), which follows the inertia of the preceding fiscal year; the PIM (Presupuesto Institucional Modificado, or Institutional Modified Budget), which results from the amendments to the budget over the year mainly stemming from variations in the fiscal revenues; and the PE (Presupuesto Ejecutado, or Implemented Budget) which is the real budget reflecting the amounts effectively spent and the actual final allotment of public resources. Divergences between PIA and PIM may be significant, to the detriment of a good expenditure forecast and efficient financial planning. The total public budget in 2023 was PEN 214 790 274 052 (Peruvian soles) (EUR 53 697 568 513).

The budgetary appropriation line-item labelled justice includes some activities branded as law enforcement, but not all of them, as the police is not included. Nine institutions are financed from this rubric: 1) Judicial Power (judiciary); 2) Public Ministry (ministerio público); 3) National Penitentiary Institute (INPE) (under the Ministry of Justice and Human Rights); 4) Ministry of Justice and Human Rights (MINJUSDH); 5) Ombuds Office; 6) National Board of Justice (Junta); 7) Constitutional Court; 8) Military and Police Tribunal; and 9) Academy of the Magistracy.

All combined were awarded a PIA equivalent to 3.5% of the total public budget in 2023 (PEN 7 504 720 289 or EUR 1 876 180 072). The judiciary receives 44% of the justice budget; the Public Ministry 35.8%; INPE 10.3%; the MINJUSDH 7.2%; the Ombuds Office 1%; the Constitutional Court 0.6%; the National Board of Justice (Junta) 0.5%; and the Academy of the Magistracy 0.2%. Furthermore, 46.6% is allocated to three budgetary programmes: improvement of services of the criminal justice system; improvement of the competencies of the prison population for their social reintegration; and specific products for the reduction of violence against women.

Other budgetary programmes have been allocated specific budgets (outside the justice budget allocation). These include: the programme to speed up family judicial processes (PEN 133 474 020 or EUR 33 368 505 – 0.06% of the total budget, allocated to the judiciary); criminal justice system’s services improvement (PEN 3 293 825 862 or EUR 823 456 465 –1.5%, allocated to the judiciary, the MINJUSDH, the Ministry of the Interior and the Public Ministry); the programme to speed up judicial labour processes (PEN 134 331 233 or EUR 33 582 808 – 0.06%, allocated to the judiciary); specific products on the reduction of violence against women, including protective measures for victims as part of the implementation of the National Specialized System of Justice for the Prevention, Sanction and Eradication of Violence against Women and Family Members (SNEJ) in eight judicial districts (PEN 261 383 680 or EUR 65 345 920 – 0.12%, and allocated to the Public Ministry, the judiciary, the MINJUSDH and the Ministry of the Interior); and specialised services for the attention and reception of complaints (PEN 180 100 868 or EUR 45 025 217 – 0.08%).

Source: (Guardia, 2022[14]), El sistema presupuestario en el Perú, ILPES, https://digitallibrary.un.org/record/464103?ln=en; Law 31638, Budget Law of the Public Sector for the Year 2023, from 6 December 2022; (OECD, 2023[15]), Public Financial Management in Peru: An OECD Peer Review, OECD Publishing, Paris, https://doi.org/10.1787/d51d43b1-en.

The budget allocation to Peru’s justice institutions as a percentage of national GDP was analogous to those in OECD Member countries in the region: Peru, 0.30%; Chile, 0.30%; Colombia, 0.32%; and Mexico, 0.33%. However, as expressed in per capita value, Chile allocated four times more financial resources than Peru to its three justice institutions (judiciary, Public Ministry and MINJUSDH), with an expenditure per capita of USD 159 (EUR 145 approximately), and Peru at USD 38 (EUR 34 approximately) (IPE, 2018[16]).

In Peru, the key determinant in the budget allocation process appears to be the negotiation of funds between justice institutions and MEF. However, these discussions seem disconnected from annual budgetary planning on social or other needs and rarely lead to budgetary allocations to the judiciary that reflect its initial proposals, a point raised by the Judicial Power and other institutions in the justice system (Lama, 2022[17]). For example, for 2023, the judiciary requested PEN 6.7 million (EUR 1.7 million approximately) from MEF. Only about half (PEN 3.4 million or EUR 850 000) was included by MEF in the draft budget proposal (Centro de Noticias del Congreso, 2022[18]). Even though the totality of the budget allocated to justice has seen an increase of approximately 5% per year since 2021, it remains less than half of the sum initially requested by the judiciary. Contextualising these discussions can help explain this disconnect:

• MEF’s Directorate of Public Budget (DGPP) focuses on cost-benefit analyses and revenue forecasting, while the Judicial Power has the expansion of and improvements in the design and delivery of judicial services as its core mission. Consequently, and as confirmed by extensive interviews with stakeholders in the executive and the judiciary, the Judicial Power regularly requests increases to its budget allocations, which are rarely approved by MEF in view of the perceived lack of quantitative analysis and standardised needs forecasting on the part of the judiciary. In addition, as raised by these stakeholders during the fact-finding missions and interviews, another reason for MEF's apparent reluctance is the lack of effective mechanisms to ensure accountability for public funds, transparency over spending and safeguards against misuse.

• These differences in approaches to budget setting – the focus on cost-benefit analyses and revenue forecasting versus core mission expansion and improvements in the design and delivery of judicial services – might explain why the two institutions find it challenging to reach a consensus on budget allocation matters. Cost-benefit analyses involve the best use of fixed resources at a given point, calculated by using existing market indicators while enhancing the quality and expanding the scope of judicial services evoke uncertainties in their delivery and their impact on society, which cannot be quantified ex ante using cost-benefit analyses.

• This type of negotiation often results in negative feedback loops, which tend not to be conducive to securing agreement on budget needs, as the uncertainties associated with measuring the impact of future service provision on societal outcomes are difficult to capture with metrics such as cost-benefit analyses. (Mazzucato, 2021[19]). Hence, as expressed by national stakeholders, important judicial reforms have not been implemented in Peru or have only been partially implemented due to a lack of dedicated resources within the national budget for this purpose (Javier de Belaunde López de Romaña, 1999[20]) (IEP, 2014[21]) (Pantoja Rosas, 2018[22]).

Indeed, the judiciary itself appears to be hobbled by limited capacity to engage in more robust performance data and evidence gathering to engage in strategic planning, including budgetary planning. This is likely in no small part due to the absence of formal, institutionalised co-ordination mechanisms that would facilitate the generation of system-wide, medium-term strategic planning and performance monitoring and evaluation frameworks, as underscored in Chapter 3. Thus, it cannot yet generate the data and evidence that can be used to demonstrate to itself, MEF, and the public the impact of existing and potential spending on improving legal and judicial outcomes for people. In addition, in some instances, the courts are unable to fully spend the resources they have been allocated, notably in human resources hiring, and face significant challenges in demonstrating value for money and strategic results from spending the resources they do have. In this connection, public accountability frameworks and mechanisms are uneven across the judiciary and appear, in some cases, to be non-existent. However, it is worth noting that the experience of most OECD Member countries suggests that performance budgeting is not a perfect system, but rather one worth investing in to identify performance measures that are relevant to decision making and inform the use of resources (OECD, 2019[23]).

Annual negotiations between the judiciary and the executive on the budgetary process have been a constant and recurrent theme in relations between the two branches. While the Judicial Power tried to claim its budgetary autonomy and the prerogative of drafting its own budget and presenting it directly and defending it before Congress at the Constitutional Court, the Constitutional Court ruled in December 2004 that while the judiciary is constitutionally entitled to prepare its own budget and defend it in Congress, the judicial budget should be aligned with the state’s public expenditure policy, which constitutionally falls under the exclusive prerogative of the executive. The ruling established the creation of the co-ordination mechanism created by Law 28821, as mentioned in Chapter 3 (Sentence TC of 31 December 2004, file 004-2004-CC/TC).

Nevertheless, the judiciary has started to address these issues at the institutional level:

• In terms of the optimisation of resources, the judiciary, as additional means, is highlighting the modernisation of judicial processes and the use of technology to improve justice services and implement justice policies more effectively (Lama, 2022[17]).

• Strategic planning to enhance the administration of justice through strengthening strategic human resources management, along with the use of technology and alternative dispute resolution mechanisms, are being flagged as effective tools to enable the more effective use of existing resources.

Robust accountability frameworks, supported by system-wide monitoring and evaluation frameworks and tools, including key performance indicators, can, at a minimum, strengthen the merit of the judiciary’s budget requests and lead to more efficient judicial performance and improved legal outcomes over the medium term. More effective co-ordination between the judiciary and MEF, and more systematic support to the judiciary on the part of MEF and other ministries, including training in the development of performance indicators and the design and use of monitoring and evaluation frameworks, can also strengthen performance, including budgetary performance, by the judiciary.

4.4. Human resource management in the judiciary

As seen in Chapter 2, the independence of judges is a key definitional characteristic of the institutional independence of the judiciary in a healthy modern democracy. Judicial human resource management (HRM) in justice systems aims to foster judges’ independence.

This section will look at several issues relevant to human resource management in the judiciary.

4.4.1. Selection and appointment of judges

Trends in the selection and appointment of judges in OECD Member countries

In OECD Member countries, various selection methods seek to appoint knowledgeable, competent, and honest judges. Selection systems also aim to ensure the independence and accountability of sitting judges. The underlying assumption is that citizen’s trust in an independent judiciary is crucial for the functioning of the political system and a clear separation of power. Judicial independence is key to ensuring its impartiality.

However, judicial independence is not absolute, as structural and psychological factors invariably affect judges’ decisions. Independence refers to the absence of bias of a judge that would unduly influence decision making (known as internal independence) and to structural independence from interference or pressure from the executive and legislative branches or public opinion and private interests.

OECD Member countries have developed three basic models for appointing judges (Volcansek, 2006[24]): 1) the civil service model, also known as the bureaucratic recruitment model, under which university graduates are recruited and whose promotion will follow the rungs on the ladder of a judicial hierarchy; 2) the professional model under which legal professionals are recruited; 3) the mixed decision making on appointments model, under which appointment decisions are shared between politicians and professional judges, with or without the use of partisan quotas, to recruit for the higher ordinary courts and constitutional courts.

1. The civil service model of judicial appointments has been widely used across Europe and in most OECD Member countries. The model's fundamental aim is to protect the imparting of justice from the vagaries of the political system and politics. Peru shares this feature. The civil service model is based on three principles. The first is merit-based recruitment, in which assessing legal knowledge and the qualifications of candidates determines entry into the judicial career, starting at the bottom of the hierarchy. This is usually accompanied by lengthy induction and training periods, sometimes lasting years depending on the country, which count as probationary periods. Second, judges are tenured for their working life if no disciplinary or criminal penalty is imposed on them. Third, judges are promoted based on seniority and the evaluation of professional merits, including performance in some national systems. Nevertheless, in some civil service models, lateral entry of experienced lawyers into the judiciary is used to fill vacancies in the higher courts. The civil service model is used to appoint entry-level judges in Austria, Belgium, France (which created the model), Germany, Italy, Portugal and Spain, among others.

2. In the professional model, in common law countries, such as Australia, England and Wales (United Kingdom) and the United States, ordinary court judges are appointed or elected from among practising lawyers or legal experts. As a rule, each judge is recruited to fill a specific vacancy and serve in a specific court, be it a trial, appellate or supreme court. Formal career advancement mechanisms are generally not provided; in other words, judges cannot formally apply to be promoted to a higher court; nonetheless, they have a legitimate expectation of being promoted in competition with other candidates to more senior judgeships. Lower court judges may join a higher court through a specific recruitment procedure in which they compete with outsiders.

3. The mixed decision making on appointments model, under which appointment decisions are shared between politicians and professional judges, with or without partisan quotas, is used to staff the higher ordinary courts and the constitutional courts in most European OECD Member countries that have a Constitutional Court, and in the United States to staff the Supreme Court.

The recruitment authority, the body in charge of managing entry into the judicial career, varies across OECD Member countries. In Slovenia, it is the Supreme Court; in Croatia, the Judicial Academy; in Belgium, the High Council of Justice, as well as in Portugal and Spain. In England and Wales, it is the Judicial Appointment Commission. In Germany, it is the Minister of Justice and a Parliamentary Committee. Box 4.5 presents the induction training models applicable in Finland, Italy, the Netherlands and Spain.

Box 4.5. OECD practices in the recruitment and training of judges

In Spain, the Judicial School, which is part of the General Council of the Judiciary, provides the initial teaching and training to lawyers who want to become judges. It is based in Barcelona. This training has three stages: 1) face-to-face theoretical-practical teaching (fase presencial), which lasts ten months; 2) supervised practice (fase de practices tuteladas) for six and a half months; and 3) substituting and reinforcing (fase de sustitución y refuerzo) for four months.

In Italy, newly recruited magistrates undergo initial training for no less than 18 months. The initial training period is divided into ordinary/theoretical training (13 months) and professional training (5 months). The ordinary training is intended to expand technical knowledge and familiarise the individual with the actual judicial work through various on-the-job training experiences: six months in the civil sector and seven months in the criminal sector. At the end of the ordinary training, each student is assigned to a specific function in a specific judicial office (either as a judge or a prosecutor). For the following five months, the students are assigned to a programme of on-the-job training in the specific functions of their first destination as judges or prosecutors. After 18 months of training, they can autonomously perform the specific judicial function in the office to which they had been assigned since the end of the first period of the initial training.

In the Netherlands, access to the judiciary is open only to candidates with at least two years of professional experience. After the sitting of examinations and psychological tests, an induction training programme (lasting from two to four years, depending on the candidate's prior experience) is mandatory.

In Finland, judicial training has traditionally been based on practical court training (learning by doing) in the courts and on the in-service training for judges provided by the Ministry of Justice. Court training refers to a traineeship system that provides induction into judicial tasks in courts. The official title of a court trainee is “Trainee District Judge”. The training period is one year. The purpose of the trainings is to maintain and develop the professional skills and competences of the courts' personnel. Methodologically, the training combines theory and practice (lectures, presentations, group work, simulation, etc.). Usually, professors, other experts and serving judges work as trainers.

Source: (OECD, 2023[25]), Modernising Staffing and Court Management Practices in Ireland, https://doi.org/10.1787/8a5c52d0-en, (Escuela Judicial de España, 2022[26]), “Plan Docente de Formación Inicial. 72 promoción de la Carrera Judicial. Curso 2022-2023”, https://www.poderjudicial.es/cgpj/es/Temas/Escuela-Judicial/Formacion-Inicial/La-fase-presencial/Plan-docente-de-formacion-inicial-72--Promocion-Carrera-Judicial--curso-2022-2023., (Oikeus.fi, n.d.[27]), Court Training, https://oikeus.fi/tuomioistuimet/en/index/courttraining.html

Qualified human resources, including judicial numbers, qualified support staff, and adequate organisational structures, are crucial to delivering efficient and timely justice. For this, understanding judicial needs to create future workload planning is important. To ensure workload planning, a caseload study to understand judicial position needs is required to be able to factor workload shifts in staffing practices throughout the years. HRM data are relevant, including upcoming and long-term retiring schedules, sick leave trends to plan for better back-up options, and hiring data with information on applicant trends to understand if current needs in terms of skills and diversity can be met for future workforce needs and goals. Data to understand what attracts potential applicants to the judiciary and what precludes others from applying may also be applied to human resource planning across other government sectors. Other factors to consider are upcoming legislative changes and the impact of changes in operations and staffing across the justice sector and related social service providers (see Box 4.6). Furthermore, this strategic workload planning should be applied by the judiciary and the wider justice system (OECD, 2023[25]).

Box 4.6. OECD practices in data and factors for strategic workload planning

The Judicial Affairs, Courts and Tribunal Policy Section of the Ministry of Justice in Canada assesses requests for additional judicial resources from courts. A software-based simulation model informs evidence-based proposals for new positions. The software is used to collect, analyse, and forecast the effects of changes in workload. The software applies a standard Business Process Modelling Notation that allows a case path to be followed, showing the variety of demand for judicial resources for different case types and in various locations. After detailed programming, time, and case data development and entry, the system can pinpoint bottlenecks, delays, and the time judges take for various aspects of the case flow, such as time to resolve motions, hearings, judgements and case conferences. Data used by the system include: the time cases take to arrive at certain milestones, the time by which cases may have been delayed at each milestone due to resource constraints (e.g. lack of judges), how long tasks take to perform per case by type, event counts (motions, conferences, trials, etc.), percentage utilisation of available resources, number of judges needed to process cases in each period (accounting for expected absences due to non-case related work or other circumstances, such as travel, education, vacation, retirement, etc.).

Source: (OECD, 2023[25]), Modernising Staffing and Court Management Practices in Ireland, https://doi.org/10.1787/8a5c52d0-en.

Selection models and appointment trends in Peru

Recruitment and appointment to the judiciary in Peru are essentially based on a mix of civil service and professional models with some important specificities. As mentioned above, the civil service model aims to recruit fresh graduates for the judiciary, whereas the professional model aims to recruit seasoned law professionals. Both exist in OECD Member countries, and, in principle, both produce independent and impartial judges.

The question of which one of them would better protect judicial independence and impartiality in a country such as Peru falls outside the purview of this report. Suffice it to say that the Peruvian recruitment system displays features of both. The civil service model features in the Peruvian system include the fact that judges are given life tenure and a career. That said, the model contains essential elements of the professional model, including the requirement that candidates for the judicial office show experience in the practice of law. Indeed, the National Board of Justice (Junta) estimates that a candidate needs at least three years of professional experience as a lawyer before being able to be considered in a competition for a judgeship, even if this does not constitute a codified prerequisite. This feature remains characteristic of professional models rather than civil service models, where candidates must show technical-theoretical knowledge of the law. The system also departs from traditional civil service models, of which a fundamental feature is the entry exam and the academic profile, with new recruits facing an induction training period of at least two years. In Peru, candidates for judgeships are assessed through four sudden-death phases (a written test, curriculum vitae, case studies and personal interviews). The Plenary Chamber of the Junta then votes on the final scores to be awarded to each candidate. A candidate must obtain at least two-thirds of the votes of the Junta membership to be offered an appointment. Score results cannot be contested.

Once selected by the Junta, successful candidates are required to take induction training. Compared to OECD Member countries, Peru’s induction training is comparatively short (80 academic hours). Training is delivered by the Academy of the Magistracy (AMAG) on topics such as ethics, leadership and court management, legal reasoning and interpretation, sensitivity to violence against women and children, human rights and interculturality. Unsuccessful candidates in the training course may be deprived of the appointment by the discretionary decision of the Junta.

Candidates are also required to participate successfully in the PROFA (Programa de Formación de Aspirantes) training programme, a mandatory nine-month course for aspiring judges or prosecutors also delivered by AMAG. In 2006, the Constitutional Court ruled that this requirement contravened the constitutional right to equal treatment before the law. However, the recruitment process was never adjusted to align with this decision (Castillo-Córdova, 2007[28]).

Compared to OECD Member practices, there is scope to strengthen pre-entry training of judges and prosecutors, as existing training can be considered limited or short by OECD standards and with an insufficient variety of courses, considering the needs of society. This generates an institutional need to fill knowledge gaps by providing training, which is not mandatory for judges and does not ensure capacity development to strengthen quality access to justice. This has also been flagged in the justice reform public policy as one of its main objectives is to create a judicial school with a new two-year model for aspiring judges and prosecutors. Reform to the selection process that gives more importance to pre-entry induction training and enhances the role of AMAG in the selection process should be encouraged. As can be observed from the distinct phases of the recruitment process, most decisions during the process are either non-contestable or discretionary, which can represent a risk of impropriety in the selection of judges.

An additional specificity in the Peruvian recruitment process is that candidates apply for specific judicial positions at a certain level of the judicial hierarchy rather than pursue a career that starts at the entry level and involves promotions based on merit, competence, seniority, and professional achievements. In addition, promotions have been granted without competition for years, leading to an overpopulation of provisional judges (around 19%) in 2023. Similarly, recruitment has been extensively confirmed without competition, leading to a judiciary overpopulated with temporary judges (who lack tenure and receive lower salaries), reaching 39% in 2023, as explained in the next section.

Hence, the Peruvian system can be characterised as a mix of the civil service model with a position-based rather than a career system. It can also be branded as a professionalised system, although with a range of relatively discretionary decisions in the recruitment process and little guarantees of due process for those willing to participate in it.

4.4.2. The tenure statute of judges, prosecutors and non-judicial staffers

Trends in OECD Member countries

The majority of OECD countries practice lifetime appointments for judges, reflecting a strong emphasis on judicial stability and independence from political pressures. Yet, to manage the increasing workloads and financial constraints, several OECD Member countries were found to use temporary judges . However, such practice remains exceptional as it leads to a temporary increase in temporary staff and is usually accompanied by appropriate safeguards (e.g. Germany, Spain) (see Box 4.7).

Box 4.7. Temporary judges in Spain

Spain allows the use of temporary judges on a special basis to temporarily fill vacancies until regular judges can be appointed. The Chambers of the Superior Tribunal of Justice informs the General Council of the Judiciary about temporary needs, together with a justifying report. The General Council decides on the validity of the requests. Only lawyers meeting the entry requirements for the judicial career can apply, with a preference for those meeting additional requirements set in the law (such as holding a Doctorate in Law, having judicial or public administration experience, among others). The term is one year, extendable for an additional year after reapplying. Appointed temporary judges have the legal status and remuneration of the judicial career members. The law also establishes reasons for termination.

Source: Organic Law 6/1985 of the Judiciary, Title IV (arts. 428-433), from 1 July 1985 (modified by Organic Law 4/2018 from 28 December 2018).

The European Charter for Judges, a non-binding document of the Council of Europe, suggests that a refusal to confirm the judge in office should be made according to objective criteria and with the same procedural safeguards as apply where a judge is to be removed from office. The main idea is to exclude the factors that could challenge judges' impartiality and independence, including, for example, the instability of judges' appointments often produced by high levels of temporary judges. Despite the laudable aim of ensuring lofty standards through a system of evaluation, it is not easy to reconcile the independence of a judge with a system of performance appraisal. If one must choose between the two, judicial independence is the crucial value (Venice Commission, 2007[29]).

The tenure status of judges, prosecutors and non-judicial staffers in Peru

In Peru, the existing position-based system for recruitment and limited human resource planning have resulted in the widespread use of temporary judges. Temporality is one of the most serious problems of the judicial system in Peru, as it has become systemic and affects judges’ impartiality in many ways.

The judges presiding over the courts are divided into three categories (Judicial Career Law, art. 65): 1) tenured judges, permanently appointed to exercise jurisdictional functions at their designated level; 2) provisional judges, regular judges who are appointed to act in a vacant position at the immediately higher level; and 3) supernumerary judges, unsuccessful candidates for a tenured position who agree to be added to a registry of judges at the same court level.

As of June 2022, there were 3 516 judges (between 39% tenured, 21% provisional, and 40% supernumerary) and 5 599 Justices of the Peace who are not part of the judicial career service and are elected by the local communities to impart justice (Ley de Justicia de Paz, Preliminary Title, art. III) at the national level, as presented in Table 4.3. As of June 2023, there were 3 595 judges and 5 599 Justices of the Peace (OECD, 2023[30]).

According to information provided by the Human Resources and Welfare Management of the Judicial Power, the number of temporary judges has diminished as of June 2023. The supernumeraries amounted to 1 383 (38.4%), the provisional judges to 696 (19.4%), and the number of tenured judges increased to 1 516 (42.1%).

Table 4.3. Number and type of judges in Peru, June 2023

	Tenured	Provisional	Supernumerary	Total
Supreme judges	19 (30%)	43 (68%)	1 (2%)	63
Superior judges	477 (58%)	328 (40%)	15 (2%)	820
Specialised or Mixed judges	878 (42%)	325 (16%)	869 (42%)	2 072
Justices of the Peace judges	142 (22%)	0	498 (78%)	640
Total	1 516 (42%)	696 (19%)	1383 (39%)	3 595

Source: OECD’s own elaboration with information provided by the Peruvian judiciary on 23 November 2023, through Oficio No. 5982-2023-GRHB-GG-PJ

A high level of temporary judges in the judicial branch (57.8%, including 19.4% provisional and 38.4% supernumerary) hinders the autonomy and independence of the judiciary. These temporary judges lack the same legal protections as tenured judges that protect their independence, such as job stability and receive lower compensation than their tenured counterparts (they are paid some 30% of tenured judges, as seen below) (OECD and National Institute of Statistics Peru, 2017[31]). Under these conditions, there is a risk to their independence and impartiality, making them susceptible to corrupt practices. The same concern applies to prosecutors, among which precarity is also high: 58% of provincial prosecutors and 8% of superior prosecutors are temporary, out of some 8 000 prosecutors.

Moreover, even formally tenured (titulares) judges and prosecutors are not safe in their positions due to the ratification and performance appraisal mechanisms, as these can be used to influence judges’ decisions or be used as a sanction, as mentioned by the IACHR and will also be seen below.

Judicial Power employees are subject to the three public sector employment regimes applicable in Peru:

• Legislative Decree 276, Basic Precepts for the Administrative Career and Remuneration of the Public Sector Law, which applies to judges and magistrates of the judiciary. This civil service regime has been frozen since 1992, and entry into this regime is only possible when a currently occupied position becomes vacant (OECD, 2023[32])

• Legislative Decree 728, Employment Promotion Law, which are open-ended contracts for hiring civil servants under the same conditions as in the private sector). The growth of posts in the private activity regime is restricted due to limitations of the Budget Law, which is why staff growth has mainly been under the CAS regime (OECD, 2023[32]). According to information provided by the Judiciary, as of June 2023, this regime was applied to 62% of other jurisdictional personnel.

• Legislative Decree 1057, Law that regulates the special regime of Administrative Contract Staff (contrato administrativo de servicios, CAS). The CAS is a Peruvian contractual mechanism introduced in 2008 to hire public personnel under administrative law for temporary appointments, available to most public institutions (Decreto Legislativo 1057 of 27 June 2008, as amended in 2012 and 2021). Another mechanism the state uses to hire personnel is service contracts, which provide the contractor with lesser benefits.

The CAS has been used extensively across the Peruvian public administration, the judiciary and prosecutorial services. In the judiciary, it is limited to hiring non-judicial and non-prosecutorial staff. Despite being phased out, the CAS has been criticised for increasing temporality and precariousness in the judicial system. As of the end of 2018, CAS personnel in the judiciary constituted 24% of the total staff, and by March 2019, it reached 25.5% in the Prosecutorial Service (Poder Judicial del Perú, 2018[33]; Ministerio Público, 2019[34]). As of May 2022, the judiciary reported that CAS personnel amounted to 35% of the total staff, and by June 2023, this figure reached 38%, signalling high turnover due to the nature of contracts. However, it is unclear whether non-judicial and non-prosecutorial staff are incorporated under the regime of the general civil service, as it should be, according to OECD standards, through proper meritocratic mechanisms (OECD, 2023[30]).

4.4.3. Selection of higher court judges

Selection of higher court judges in OECD Member countries

In most OECD Member countries, appointments to higher courts are generally made without a competitive process. However, they typically have a certain length of service and experience. These appointments are primarily political but may include some merit-based considerations (Box 4.8).

Box 4.8. OECD Member practices in the selection of higher court judges

In Austria, the Supreme Court consists of 85 judges organised into 17 senates or panels of 5 judges each. The Constitutional Court consists of 20 judges, including 6 substitutes. The Administrative Court has two judges plus other members depending on the importance of the case. Selection of candidates to the Supreme Court is prepared by the Supreme Court’s internal senate (president, first deputy president, three Supreme Court judges). The Supreme Court judges are nominated by the Minister of Justice and appointed by the president, and they serve for life. No appeal possibilities exist against the appointment. The Constitutional Court judges are nominated by several executive branch departments and approved by the president; judges serve for life. The Administrative Court judges are recommended by the Minister of Justice and appointed by the president; the president determines the terms of judges and members.

In Portugal, the Supreme Court has 12 justices. The Constitutional Court has 13 judges. The Supreme Court justices are nominated by the president and appointed by the Assembly of the Republic. Judges are appointed for life. Ten Constitutional Court judges are elected by the Assembly, and three are elected by the other Constitutional Court judges. Constitutional Court judges are elected for a six-year non-renewable term.

In Spain, the Supreme Court consists of the court president and is organised into the Civil Chamber with a president and 9 magistrates; the Penal Chamber with a president and 14 magistrates; the Administrative Chamber with a president and 32 magistrates; the Social Chamber with a president and 12 magistrates; and the Military Chamber with a president and 7 magistrates. The Constitutional Court has 12 judges and is considered outside the judiciary. The monarch appoints Constitutional Court judges for a nine-year term upon proposal by the Parliament. The monarch also appoints the Supreme Court judges and Regional Courts Presidents.

Source: (OECD, 2023[25]), Modernising Staffing and Court Management Practices in Ireland: Towards a More Responsive and Resilient Justice System, https://doi.org/10.1787/8a5c52d0-en.

Selection of Higher Judges in Peru

Peru’s Constitution outlines the rules for appointing judges to the country’s High Courts:

• To be appointed a Supreme Court justice, an individual must be at least 45 years old, be a Peruvian citizen by birth, and have 10 years of experience as a prosecutor or as a judge, or at least 15 years as an attorney or law professor.

• For a Superior Court judge, the requirements include being at least 32 years old, be a Peruvian citizen by birth, and having five years of experience as a Specialised or Mixed Judge, Adjunct Superior Prosecutor, or Provincial Prosecutor, or at least seven years of practice in law or being a university faculty member in a law-related discipline.

• A Court of Special Jurisdiction judge is required to be at least 28 years old, be a Peruvian citizen by birth, and have 2 years of experience as a Justice of the Peace judge, over 3 years as Secretary of the Superior Court or Adjunct Provincial Prosecutor, or over 5 years of practices in law or being a university faculty member in a law-related discipline.

Once these requirements are met, candidates are evaluated, and appointments are made by the Junta, the National Board of Justice. The Junta selects and appoints judges and prosecutors through public competitions and individual performance evaluation, as mentioned above and described below (art. 150, Constitution).

Constitutional Court judges need the support of two-thirds of Congress members for their election. They are not subject to an imperative mandate nor receive instructions from any entity; therefore, they operate independently. They cannot be removed or held accountable for their votes or content of their opinions. Additionally, they have legal immunity and can only be detained or tried with the Court’s authorisation, except in cases of flagrancy (art. 13 of the Organic Law on the Constitutional Court). Six of the seven Constitutional Court members are required to vote to declare a law unconstitutional (Law No. 26435, 1995).

Higher judges’ selection in Peru compares positively with those of most OECD Member countries, where appointments to higher courts are generally made without competition, but a certain length of service and experience is required. These appointments are fundamentally political or governmental appointments with some merit-based components. In some countries, Supreme Court judges recommend the higher judges themselves (usually using an elective process) or via a judicial appointment committee and are appointed by the executive.

4.4.4. Performance appraisal and ratification of judges: Trends in OECD Member countries

Within OECD Member countries, there is strong recognition that accountability is an essential element of good governance in the judiciary. Measures to promote accountability include but are not limited to performance management, transparency and integrity safeguards. These measures need to be carefully designed to not hamper judicial independence and impartiality.

The distinctiveness of justice delivery impacts court management, a particular kind of organisation with highly qualified staff and an unclear hierarchy where staff (judges) do not receive instructions on how to perform their jobs. Managing public expectations on the quality of justice becomes challenging (Jeuland, 2018[35]). Due to the need for judicial independence, the content of judgements cannot be evaluated outside the appeal systems. Consequently, a judge’s output cannot be assessed as good, mediocre or bad, as this evaluation occurs in higher courts through appeal mechanisms (CCEJ, 2014[36]).

There are different approaches to judicial performance appraisals across OECD Member countries (Box 4.9). In addition, the Bangalore Principles of Judicial Conduct outline core measures of judicial performance (UNODC, 2016[37]). While judiciaries generally establish performance standards to foster the quality, accessibility, and timeliness of decisions, the frequency of evaluation exercises varies across countries. The authority in charge of the appraisal may also differ, ranging from judicial inspectors to court presidents.

Box 4.9. OECD Member practices in performance appraisal through peer review pilots

In Denmark in 2004, the District Court of Copenhagen conducted a pilot project on the quality of legal opinions and the conduct of court proceedings. A working group defined several quality indicators and conducted a survey measuring the level of these quality indicators in both legal opinions and during court proceedings. Judges from the District Court of Copenhagen conducted the survey. The judges set up quality groups, and a representative from one group then reviewed the legal opinions and attended the court hearings of judges from another group.

In the Netherlands, peer review primarily aims to improve the functioning of individual judges and focuses on behavioural rather than judicial aspects. It contributes to a more open culture within the profession, in which individual performance in the courtroom can be discussed and improved upon. Peer review can take place in diverse ways, one being the camera method, where the court hearing is recorded and discussed with the judge afterwards.

Source: (OECD, 2023[25]), Modernising Staffing and Court Management Practices in Ireland: Towards a More Responsive and Resilient Justice System, https://doi.org/10.1787/8a5c52d0-en.

Ongoing efforts aim to establish minimum standards for evaluating professional performance and stability of judiciary members (ENCJ, 2021[38]). For example, the 2020-21 European Network of Councils for the Judiciary (ENCJ) report identified a set of minimum standards currently undergoing evaluation in areas such as timeliness and efficiency of procedures; due process ensuring accessibility; the quality of judicial decisions; and public access to the law to facilitate people’s access to justice.

Finally, there is an increasing body of literature stressing international standards in the evaluation of the quality of judicial decisions. The Consultative Council of European Judges (CCJE) suggests that in states where a Council for the Judiciary exists, this council should be entrusted with the evaluation of the quality of decisions. Within the Council for the Judiciary, data processing and quality evaluation should be undertaken by departments other than those responsible for judicial discipline. For the same reason, where there is no Council for the Judiciary, the quality of decisions should be evaluated by a specific body having the same guarantees for the independence of judges as those possessed by a Council for the Judiciary (CCEJ, 2018[39]).

Judicial ratification in Peru

In Peru, judges undergo a ratification procedure every seven years (art. 154, Constitution).

Hence, the main response to the issue of performance appraisal and to the larger challenge of ensuring judicial accountability has been to give effect to this constitutional provision through the application of a ratification procedure every seven years and a performance appraisal procedure every three and a half years, managed by the National Board of Justice (Junta).

The ratification process was first included in the Constitution of Peru of 1920, following a hierarchical system with disciplinary control applied to judges by the Supreme Court and the Government (Gonzales, 2012[40]). This system was carried over in recent iterations of the Constitution, including the current one dating from 1993, which also created the National Council of the Magistrature, replaced by the Junta in 2018 (see Chapters 2 and 3).

There have also been attempts to eliminate or reform the ratification procedure. For instance, the 2001 Study Commission for a Constitutional Reform (Comisión de Estudio de las Bases de la Reforma Constitucional) proposed the elimination of the ratification and the transfer of all disciplinary procedures to the National Council of the Magistrature. In 2022, the Ombuds Office recommended suspending all ratifications until due process guarantees were established and guaranteed. The Report by the Special Commission for the Integral Reform of the Administration of Justice (CERIAJUS) proposed eliminating the ratification procedure altogether and implementing yearly performance evaluations (see Chapter 2).

The current judge ratification procedure dates from 2020 and is overseen by the Junta. It has four stages:

• Calling/convocation: The Junta notifies the judge requesting the necessary documentation and the judge’s schedule of activities. The calling/convocation is published and informed to the judiciary (arts. 11-14).

• Appearance: Judges must submit various documents, including judicial decisions, management reports, publications and training certificates. Furthermore, information is gathered from other public institutions, including a report from the judiciary on the judge’s cases under review (arts. 15-28). Citizens can provide information on the judge’s behaviour during this stage (arts. 29-37).

• Evaluation: The judge’s conduct is assessed, including disciplinary measures, work organisation, management efficiency, judicial proceedings, decision quality, debt information, attendance and punctuality, compliance with deadlines, performance, suitability, quality of publications, professional development, etc. Psychological and psychometric evaluations are also part of this stage (arts. 42-60).

• Decision: If the judge attains a certain score (good or excellent for conduct and a 70% score for suitability), they move to the Plenary of the Junta for deliberation, which determines whether the judge is ratified (arts. 61-64). There is an option to request reconsideration of the decision (arts. 65-73).

The decisions of the Junta on ratification are discretionary administrative acts, not disciplinary, but must be immediately implemented. The non-ratified judge or prosecutor must leave the post the day after the notification of the decision, even if the person appeals to the Junta itself in a recurso de reconsideración, asking it to reconsider its decision. Otherwise, the Junta’s decision is final. It is not appealable before a court or any other instance (art. 37). At the conclusion of a ratification procedure, a dismissed judge or prosecutor is disbarred for life and cannot ever re-join the judiciary or the procuratorship.

Tenured judges can thus be subjected to a relatively discretionary dismissal through the current ratification mechanism and are consequently compelled to hold precarious employment. Loyalty to the law can easily be superseded by loyalty to the assessors and superiors, with irreversible damage to the rule of law and to the obligation to judge a case on its merits.

Indeed, some have seen this ratification process as arbitrary and detrimental to judicial independence (Gutarra, 2020[41]). The IACHR has flagged that the process has been misused in the past by the Junta’s predecessor institution, the National Council of the Magistrature (Consejo Nacional de la Magistratura); the Court declared that the process has been used as a mechanism to sanction magistrates and public prosecutors, which runs afoul of judicial independence (case Cuya Lavy v. Peru) (Inter-American Court of Human Rights, 2021[42]).

The resolution of the IACHR pointed out serious violations of the American Convention of this ratification procedure. In response, in January 2022, the judiciary, including the Plenary of the Supreme Court and the Superior Courts of the country, requested that the Junta not proceed with the ratification process and that legislative changes to the current legal framework be adopted to ensure that Peru complies with the declaration of the IACHR in the case Cuya Lavy v. Peru. For its part, the Junta asked the National Judges’ Association (Asociación de Jueces para la Justicia y Democracia, JUSDEM) in February 2022 to assess the effects of the IACHR decision on the ratification procedure.

In response, the JUSDEM stated almost immediately that the IACHR decision condemned the current Peruvian ratification system because it is a sanction, a disciplinary mechanism being applied without due process and cause (Asociación de Jueces para la Justicia y Democracia, 2022[43]). The IACHR decision clearly invalidates the ratification regulation (legal ground 205 of the sentence), while the JUSDEM opinion underlines that the ratification regulation contains serious shortcomings and undermines judicial independence. Indeed, the IACHR decision called for amending the Peruvian Constitution on the issue of ratification and evaluation of judges and prosecutors (legal ground 206), while the JUSDEM opinion suggested that the ratification and evaluation procedures of judges and prosecutors be suspended until the domestic legal framework is adjusted to conform with the IACHR decision.

For the time being, no plans have been announced concerning a modification of the current ratification regulation. The existing framework contains no judicial procedure for appealing administrative decisions on judges’ and prosecutors’ ratification. Before the reform of 2019, ratification decisions did not need to be justified, or if justified and the incumbent heard, the latter was not allowed to initiate a constitutional amparo procedure: an extraordinary legal remedy against violations of constitutional rights by officials and government agencies. In OECD Member countries, a judge is never evaluated on the contents of his/her decisions, which should only be assessed by a higher court through the legally foreseen appeal procedures. This procedure is clearly at loggerheads with international recommendations on the independence of judges.

Performance appraisals

Performance appraisals are regulated in art. 38 of the Organic Law on the Junta and the Regulation on Performance Appraisal (approved by Resolution No. 515-2022-JNJ from 28 April 2022). This procedure is conducted every three and a half years by the Junta together with AMAG, and its goal is to provide recommendations to evaluated judges and prosecutors to follow specific training or other ways to improve their performance. AMAG uses the recommendations to design training programmes. The recommendations also indicate which specific training activities an evaluated judge or prosecutor must follow. Beyond the output derived from individuals’ performance appraisals, there is no systematic training needs analysis done by AMAG, the Junta or the Judicial Power.

Most importantly, these training activities required by the performance appraisal are to be delivered by AMAG (art. 40-3), a body enjoying constitutional standing within the Judicial Power, which delivers training in exchange for tuition fees paid by each individual participant in the training, not by his/her institution. The Junta monitors whether the relevant judge or prosecutor follows up on the individual training recommendations. This arrangement may generate questions of institutional conflict of interest for AMAG while evaluating judges and prosecutors and sending them for training at AMAG itself.

The appraisal proceeding has features like those in the ratification process, including calling/convocation, appearance, evaluation and recommendation. The evaluation stage focuses on competencies (digital, teamwork, leadership, service vocation) and abilities related to judicial work, knowledge, management of the judicial office and the integrity of the judge. It is carried out by evaluating reports, resolutions or rulings of the person being evaluated (Regulation on Performance Appraisal).

As stated with respect to the regulation mentioned above, performance appraisal is complementary and independent of the ratification and disciplinary proceedings; however, the results of this evaluation can be considered by the Junta in ratification proceedings and in the selection and appointment of judges (Regulation on Performance Appraisal).

As stated above, OECD Member country practice suggests that a judge should not be evaluated on the contents of his/her decisions, which should only be assessed by a higher court through the legally foreseen appeal procedures. This is particularly important given that the results of an evaluation and compliance with its recommendations are considered in the ratification of judges, which could undermine their impartiality if it is considered that their rulings could influence the ratification process.

Improving accountability mechanisms respecting judges and prosecutors is an important objective in modernising judicial systems across the OECD. Performance appraisal is one tool to pursue this objective. In Peru, the ratification procedure is another one. However, these need to be refined in Peru: stronger procedural guarantees protecting judicial independence and the judicial career must be given to those being scrutinised. In principle, a judge’s performance should be appraised in a way that protects his/her personal independence and freedom of judgment in resolving individual cases.

Judicial independence and impartiality do not occur in the abstract but in concrete settings where judges, as human beings, face all sorts of influences that may affect clarity of mind, impartiality and independence. Therefore, knowledge of the law, a sound development of the “art of judging” and a sense of justice are necessary assets in a judge. Judges are given enormous power by the state over citizens, businesses, and government, and, as with any other power, Judicial Power needs to be checked in a democracy. Cultivating these features requires continuous training, awareness raising and socialisation in public service, as well as in the values underpinning democratic pluralism.

Accountability of sitting judges is a requirement in democratic societies, but the accountability framework needs to be carefully designed, as with any HRM tool, directly or indirectly aimed at enhancing judicial accountability (discipline, performance appraisal, merit-based recruitment, promotion and retention, professional improvement through training, variable remuneration and perquisites) can be susceptible to arbitrariness, abuse and malpractice. Applying these tools, therefore, requires clear guidelines that protect the integrity, transparency, independence and impartiality of the judicial decision-making process. Regardless of how imperfect these mechanisms might be, though, they are nevertheless needed in liberal democracies to promote and protect the rule of law, to safeguard against the abuse of power and misbehaviour by judges and to promote the individual improvement and professional development of judges, as well as the quality of the judiciary.

4.4.5. Judges’ remuneration

Remuneration trends in OECD Member countries

Remuneration across OECD Member countries varies considerably according to the wealth of the state and the state of the judge’s career. It also varies in states and jurisdictions where judges are recruited at the beginning of their professional careers or as experienced lawyers (as in Israel, Switzerland, and Scotland and Northern Ireland [United Kingdom]). The European Commission for the Efficiency of Justice (CEPEJ) has considered three groups (CEPEJ, 2022[44]):

• Salaries are the lowest at the beginning of their careers, compared to the average salary (less than twice the average salary), but a significant catch-up can be noted during their careers (multiplied by two to more than two and a half against the beginning of the career) (e.g. Austria, Belgium, France, Germany, Sweden).

• Salaries are quite high at the beginning of their careers, compared to the average salary (between two and four times the average salary), and it increases during their careers (multiplied by more than two against the beginning) (e.g. Czech Republic (hereafter, Czechia), Portugal, Spain).

• Salaries are high at the beginning of their careers (at the beginning, earning more than four times the average salary and at the end, more than six times) (e.g.  Scotland and Northern Ireland), bearing in mind that judges in this group are recruited among already experienced lawyers.

According to international best standards and practices, the level of judges’ remuneration contributes to their independence, and they should be offered a level of remuneration corresponding to their status and responsibilities, which should be sufficient to shield them from inducements aimed at influencing their decisions (Council of Europe, 2010[1]).

Remuneration in Peru

The Peruvian remuneration scheme for judges is complex. It is outlined in arts. 186 and 187 of the 1993 Organic Law on the Judicial Power, as amended. The take-home pay of judges is based on four components: basic pay; a jurisdictional function bonus; operational expenditures, which shall be partially a non-justifiable lump sum (amounting to 90%), but 10% needs to be justified by recipients; and a supplement for seniority/length of service (25% of basic pay after ten years for all judges except those on the Supreme Court, for whom the entitlement to this supplement is every five years and has another legal regime).

Not all components are considered pensionable remuneration. Disputes and controversies on this subject are widespread among experts and stakeholders, especially between MEF and the Supreme Court/Judicial Power. Perhaps clarifying the remuneration system for the judiciary and prosecutors could enhance legal certainty and better internal and external equity in the system. In fact, it appears that the proportions envisaged by the Organic Law on the Judicial Power (art. 186-5b) are no longer in practice after several years of political negotiations on the issue. Those proportions were that judges of Categories 1 to 3 (Justice of the Peace, Specialised and Superior judges) should be remunerated 70%, 80% and 90%, respectively, of the remuneration paid to judges of the 4^th category (Supreme Court judges). In practice, those percentages have shrunk to 26%, 41% and 53%, respectively (Limo Sánchez, 2019[45]).

Nevertheless, given the circumstances, by OECD averages, Peruvian judges enjoy similar salaries, except for supernumeraries, whose remuneration is about 30% of tenured judges (Table 4.4), according to Supreme Decree of the President of the Republic No. 353-2019-EF (Official Gazette, El Peruano, of 29 November 2019, pages 25-26). Between October 2021 and September 2022, the average salary in urban areas of Peru was PEN 1 558 (EUR 383) (INEI, 2022[46]). Considering this number, the salary of supernumerary judges is between 2 and 4 times the average salary, and that of tenured judges is between 6 and 22 times the average salary.

Table 4.4. Peru’s judges’ salary scale

	Monthly salary in PEN	Monthly salary in EUR (approximate)
Tenured Supreme Judge	35 000	8 600
Tenured Superior Judge	19 000	4 673
Tenured Specialised Judge	15 000	3 690
Tenured Justice of the Peace Judge	9 500	2 337
Supernumerary Superior Judge	6 505	1 601
Supernumerary Specialised Judge	4 705	1 158
Supernumerary Justice of the Peace Judge	3 505	863

Note: A rough salary table for the year 2020 in Peruvian soles (PEN) and its approximate equivalent values in EUR for tenured judges (without length of service, but including basic pay, jurisdictional bonus, and operational expenditures) and Supreme Decree on supernumeraries (for these latter operational expenses are not included). Is it worth highlighting that, according to the National Institute of Statistics and Informatics (INEI), the average salary in Peru between October 2021 and September 2022 is PEN 1 508 (some EUR 383). The calculating reference is the “revenue unit in the public sector” (unidad de ingreso en el sector público, UISP), an index equivalent to PEN 2 600 as of 2016. For Supreme Judges, the bonus was 4.5 UISP (PEN 11 700) from 2018 onwards. Supreme Judges with more than five years of service may earn PEN 45 000 per month. Peruvian judicial salaries are well above those in many OECD Member countries and are equivalent in absolute numbers to other OECD Member countries. However, the cost of living is much cheaper in Peru. So, the judicial salaries in Peru are excellent (except for those in precarity).

Source: (Limo Sánchez, 2019[45]), “La situación laboral de los jueces del Perú: de la precariedad de sus derechos a la afectación de su dignidad”, Pasión por el Derecho, 31 December 2019, https://lpderecho.pe/situacion-laboral-jueces-peru-precariedad-derechos-afectacion-dignidad/; Supreme Decree No. 353-2019-EF, which approves the remuneration and bonification of supernumerary judges of the judiciary, from 29 November 2019.

4.4.6. Discipline and integrity

Discipline and integrity trends in OECD Member countries

Disciplinary rules focus on specific acts or behaviours that the legislator considers legal breaches. In contrast, professional standards represent good or best practices that may or may not coincide with acts that could contravene the law. Misconduct subject to disciplinary liability should be serious, obvious, and flagrant and go beyond being perceived to contravene a professional standard. Breaches of professional standards should be sanctionable if the facts also demonstrate that the behaviour has contravened disciplinary rules. In some countries, however, disciplinary rules are formulated to be coterminous with professional standards, so a breach of a standard is a breach of the disciplinary rule.

Thus, breaching a code of ethics need not necessarily lead to disciplinary liability. Indeed, some countries distinguish between a code of ethics and a code of conduct, with breaches of the latter only being subject to disciplinary liability. This is the case in Croatia, Belgium, Italy, Romania, Slovenia, Spain and Sweden.

If a code of ethics is not a legal instrument but rather a set of behavioural guidelines, breaching it should not necessarily constitute grounds for disciplinary action. Yet if the code of ethics has been adopted in the format of a binding regulation, breaching the code can be taken as a violation of legal obligations and consequently liable to disciplinary sanction. As a result, distinct systems have been established to regulate or enforce professional ethical standards in some countries. For instance, in Slovenia, failure to observe such standards may attract a sanction before a Court of Honour within the Judges’ Association, not before the judges’ disciplinary body. In Czechia, in a dire situation of non-observance of the rules of professional conduct, a judge may be excluded from the Judges’ Union, which is the source of these principles.

One of the most prominent sources defining judicial obligations is a country’s Constitution or Basic Law, which usually mandates judges to be independent and impartial. The rationale for most legal obligations imposed on judges flows from these constitutional mandates (e.g. incompatibilities, conflict of interest). In some countries, work discipline (complying with office hours, delivering rulings within deadlines, etc.) forms part of the judge’s duties, the breaching of which may bear disciplinary liability.

In most OECD Member countries, any individual may lodge a complaint requesting disciplinary procedures against a judge. Complaints may even be lodged anonymously in some countries. However, the issuing of an administrative act opening a preliminary inquiry or a disciplinary procedure against a judge is reserved to the public authority only. Experience in OECD Members points to three categories of sanctions: 1) moral (remonstration, reprimand, warning, etc.) that will tarnish the honour or reputation of the judge; 2) pecuniary or economic (fines, suspension of remuneration); and 3) sanctions affecting a judge’s career or membership in the judiciary (long suspension, demotion, compulsory transfer, compulsory retirement before age, dismissal).

Across OECD Member countries, there are diverse types of disciplinary bodies, and they mostly follow three distinct systems (see Box 4.10).

Box 4.10. Disciplinary bodies in OECD Member countries

National Councils for the Judiciary (or a special committee or other body) and its decisions may be appealed to special disciplinary panels or courts (e.g. France, Italy, Mexico, Spain; and Colombia with the Comisión Nacional de Disciplina Judicial, which depends on the National Council for the Judiciary).

Independent panels or committees outside the National Council for the Judiciary or with the involvement of the head of the judiciary or the president of a court (e.g., in Norway with a separate supervisory committee for disciplinary cases; in England and Wales where the Lord Chief Justice makes decisions on disciplinary matters with the agreement of the Lord Chancellor).

Courts of Justice (including disciplinary panels or special disciplinary courts) or Supreme Courts (e.g., in Germany, there is a special senate within the German Federal Court of Justice for cases against federal judges, while special tribunals exist for judges).

Source: (OSCE, 2019[47]), Note on International Standards and Good Practices of Disciplinary Proceedings against Judges, https://www.osce.org/odihr/410387.

Discipline and integrity in Peru

The Organic Law on the Judicial Power (art. 184) defines the obligations of judges as a mix of personal labour obligations (e.g. observing working hours), procedural-related obligations (e.g. to demand from the parties in the process that precise their claims) and integrity-related obligations (e.g. avoiding conflict of interest). Regarding conflict of interest, magistrates are required to recuse themselves from a case when the magistrate or their spouse or partner has or has had an interest in or professional relationship with one of the parties in the case (art. 196[7]); it is up to the National Authority for the Control of the Judicial Power to identify judges’ possible conflict of interest (art. 102-A.1) (OECD, 2023[48]).

The new Criminal Procedures Code (Legislative Decree 957) (Chapter V, arts. 53-59) further regulates conflict of interest by establishing several factors for the judge to decline jurisdiction, including interest in the process, friendship, enmity, being creditors or debtors of one of the parties, among other reasons (art. 53). If the judge does not decline jurisdiction, the parties can challenge them by alleging one of the causes listed in the clause, explaining the cause, and providing, if possible, elements to prove it (art. 54).

Other measures to ensure the integrity and impartiality of judges are provided and regulated by the Law on the Judicial Career. Some of them include the duty of recusal: judges must declare those cases in which they may be aware of illegally exercising their functions and that such conduct would contravene professional ethics (art. 33-12). Judges can only exercise their jurisdictional function with the possibility of also teaching at a university (art. 33-13 and art. 40-3). In addition, judges or their spouses or cohabitants or family members cannot receive from the litigants or their lawyers' donations, gifts, entertainment, hospitality, or intestate succession; nor can they receive publications, trips or training/capacity-building offers from any institution that has a case against the state (art. 40-2). Judges cannot influence or intervene in any way in the result of another judicial proceeding (art. 40-7).

There are no disciplinary liabilities for discrepancies in legal interpretation (art. 212), where judges are expected to be independent. Disciplinary penalties are appealable through administrative remedies: revision (before the same authority), appeal (before a higher authority) and reconsideration, but not before the Administrative Court (Law 27444 of 2001). As in other OECD Member countries, the Law on the Judicial Career regulates three types of misconduct: minor (leve), serious (grave) and profoundly serious (muy grave) (arts. 46-48). The sanctions are reprimand, fines, suspension, and destitution (art. 50-55), and there are guidelines to establish the proportionality between both (art. 51).

The competent authorities to apply disciplinary action against judges are the Junta or the control organs of the judiciary (Law on the Judicial Career, art. 63). The National Authority for the Control of the Judicial Power (replacing the existing Judicial Oversight Office [Oficina de Control de la Magistratura, OCMA]) was created through Law 30943 of 2019, which started operations in August 2023 when the Junta appointed its first head for the period 2023-28. Its purpose is to establish a mechanism of external functional control of judges, except Supreme Court judges, who are under the direct remit of the Junta.

Functional control includes prevention, supervision, inspection, investigation, undertaking disciplinary actions and imposing disciplinary penalties, as foreseen in the Law on the Judicial Career. The head of the National Authority is appointed through an open, merit-based national competition and reports to the Junta. The National Authority is also expected to provide analyses on the functioning of judicial offices and their internal working processes and propose recommendations for their improvement. This Authority is different from the existing General Inspectorate of the Judicial Power, but the differentiation is not clear yet from the wording of the law. The head of the National Authority will also head the Inspectorate (art. 103‑B), but a new body of specialised judges on disciplinary control is created (art. 103-C), along with a mechanism to facilitate whistleblowing (art. 103-D). These changes respond to a policy designed to reduce corruption. However, it is too early to assess the operational performance of this new administrative body.

It is also incumbent upon the Junta to apply the sanction of destitution to judges and prosecutors at all levels and to apply sanctions of warning and reprimand or suspension to members of the Supreme Court and Supreme Prosecutors. The Organic Law of the Junta regulates the grounds for these kinds of sanctions (arts. 41-43) and the proceeding (art. 43 and Chapter V). The control body of the judiciary adjudicates all the other cases.

An ethics code for the judiciary was adopted in 2003 by the Plenary Chamber of the Supreme Court, which established a Judicial Ethics Committee. A regulation was adopted in 2019, adopting a new code of ethics referring as interpretative guidance to the Bangalore Principles of Judicial Conduct and the UN Principles on Judicial Independence. There is also an Ibero-American Code of Judicial Ethics, adopted in 2006 and amended in 2014, to which Peru adhered. These codes contain guidance on conflict of interest. The Law on the National Authority for the Control of the Judicial Power contains provisions for the protection of whistleblowing on corruption.

All this still needs to be developed in practice, however. The effective implementation of these norms and the safeguarding of the independence and impartiality of judges are not guaranteed. According to the Ombuds Office, out of all complaints received by the Authority for the Control of the Judicial Power and its regional offices between 2016 and 2018, only 11% have concluded with a sanction, mostly fines and reprimands (90% of the sanctions), while the others are still pending or have been filed (Defensoría del Pueblo, 2020[49]). The Ombuds Office’s report mentions that one of the factors contributing to this consistently high number of minor sanctions (and the low rate of more serious disciplinary sanctions) (see Table 4.5) is that the law allows the disciplinary organs to impose less severe sanctions for each of the misconducts if it is so considered, without clear criteria [Law on the Judicial Career, art 51 (Defensoría del Pueblo, 2020[49])]. The ambiguity and lack of precision regarding the application of sanctions allow for different interpretations and criteria regarding what is sanctionable. The vagueness of some disciplinary misconduct carries the risk of arbitrary application and violation of judges’ independence (Organization for Security and Co-operation in Europe, 2019[50]).

Table 4.5. Magistrates and jurisdictional assistants’ sanctions in 2022

	Magistrates	Jurisdictional assistants	Total
Reprimand	630 (37%)	2 187 (61%)	2 817 (53%)
Fine	887 (52%)	1 334 (37%)	2 221 (42%)
Suspension	109 (6%)	46 (1%)	155 (3%)
Destitution Proposition to the Junta	71 (4%)	29 (0.8%)	100 (1.9%)
Total	1 697 (32%)	3 596 (68%)	5 293 (100%)

Source: OECD’s own elaboration based on Oficina de Control de la Magistratura, https://ocma.pj.gob.pe/Estadisticas/MapaInteractivo.

The lack of clarity regarding the law and harmonised and unified criteria governing the application of disciplinary rules can be explained by the existence of three different organs that conduct disciplinary proceedings for magistrates, public prosecutors, and jurisdictional auxiliaries: the Junta (as an autonomous and independent institution), the OCMA and the Executive Council of the Judiciary, both part of the judicial branch (see Chapter 3 on the judiciary and disciplinary roles).

Compared with other OECD Member countries’ disciplinary bodies (see Box 4.10), the existence of different bodies with disciplinary roles and the vagueness of the law in Peru can undermine equal treatment before the law and the independence of judges.

4.4.7. Gender parity within the judiciary and the Commission on Gender Justice

Enhancing gender equality in the judiciary: Trends in OECD Member countries

Having balanced gender representation in judicial decision-making positions, such as a President of the Supreme Court, President of Higher Courts or the Executive Council of the Judiciary, is crucial for the development and implementation of policies and for the allocation of resources to prevent gender discrimination and promote and advance gender equality within the justice system (Box 4.11). Women in leadership positions can not only raise awareness concerning gender equality and gender mainstreaming activities but can also be inspirational role models for other women judges to assume such roles (OECD, 2023[51]).

Box 4.11. OECD Member practices in promoting gender equality in the justice system

Chile adopted an action plan on gender mainstreaming in the judiciary in 2015. The action plan created a Working Group on Gender Issues as a body of knowledge and observation regarding the incorporation of the gender perspective into the judicial branch. The Working Group comprises members of the judiciary as well as ministers, judges and trade union representatives. The action plan sets a guiding framework and lays out actions to be taken by the Working Group, as follows: analysing and evaluating gender inequalities and gender-based discrimination in the exercise of jurisdictional activity, as well as identifying gender equality and mainstreaming objectives in the judiciary. Considering these objectives set by the action plan, the Working Group participated actively in analysing the gender-diagnostic studies and in elaborating proposals to develop a gender policy for the judiciary. The adoption of the action plan and the creation of the Working Group indicate strategic promotion of gender equality and mainstreaming within the judiciary in Chile.

In Mexico, the Federal Electoral Tribunal’s human resources department established a Gender Equality Unit to address obstacles deterring women from judiciary careers. These obstacles included limited family-friendly policies, mobbing and sexual harassment. The unit implemented measures like shorter working hours, paternity leave and raising awareness of gender stereotypes in the workplace. Yet, the distance of the Gender Equality Unit from the apex of decision making has significantly curtailed its influence. It has been transferred to the Presidential Office of the Court to increase its leverage. However, its influence on decision making is still uneven and depends on the personality of the President of the Court.

The Portuguese Gender Equality Policy Framework is guided by the Fifth National Plan for Gender Equality, Citizenship and Non-discrimination 2014-2017. Under this policy framework, the Ministry of Justice developed its own Second Plan for Gender Equality 2015-2017. This plan for gender equality builds on a gender assessment conducted by the Ministry of Justice, which included a study of characterisation, by gender, of the leading posts of the Ministry of Justice; evolution, by gender, of the professions associated with justice in the years 2010 to 2013; and evaluation of the implementation of the intervention measures proposed in the First Plan for Equality of the Ministry of Justice.

The Directorate of Judicial Services, and more specifically, the Human Resources Branch of the Judiciary in France, guarantees all magistrates equal access to all posts. A gender analysis of judicial recruitment has been conducted over several decades in France and allows for a comparison of data over a long-time span. Statistics are regularly drawn up on the distribution of people according to the age pyramid and the distribution of senior posts.

Source: (OECD, 2017[52]), Building an Inclusive Mexico: Policies and Good Governance for Gender Equality; (OECD, 2019[53]), Fast Forward to Gender Equality: Mainstreaming, Implementation and Leadership; (OECD, 2023[25]), Modernising Staffing and Court Management Practices in Ireland: Towards a More Responsive and Resilient Justice System.

As of 2018, women, on average, made up 61% of the professional judges across OECD Member countries that are also EU Member States, a 2 percentage-point increase since 2016. The representation of women in professional judgeships in OECD Member countries ranges from 81% in Latvia to a low of 33% in the United Kingdom. In Greece, Ireland, Luxembourg and Switzerland, the share of women has risen steeply (around 10%) since 2010. However, uneven gender representation is still observed in Supreme Courts, with an average of 36% in 2018 (OECD, 2021[54]). To increase the representation of women in the judiciary, OECD Member countries have implemented concrete actions in line with the relevant provisions of the OECD Recommendation on Gender Equality in Public Life [OECD/LEGAL/0418] adopted in 2015 (Box 4.12).

Box 4.12. Gender balance in judicial institutions: Relevant provisions of the 2015 OECD Recommendation on Gender Equality in Public Life

The 2015 Recommendation promotes a government-wide strategy for gender equality reform, including recommendations to judicial institutions to achieve gender balance.

Considering measures to achieve gender-balanced representation in public life, including in decision-making positions, by encouraging their participation in public institutions, including:

• Introducing measures to enable equal access to opportunities in senior public service and judicial appointments, such as disclosure requirements, target setting or quotas, while ensuring a transparent and merit-based approach in judicial and senior public sector appointments through open competition, clear recruitment standards and wide vacancy advertisement.

• Mainstreaming work-life balance and family-friendly work practices at the top level in public institutions and promoting gender-sensitive working conditions (e.g. reviewing internal procedures, reconsidering traditional working hours, developing schemes to support the reconciliation of family and professional obligations, providing incentives to men to take available care leave and flexible work entitlements).

• Facilitating capacity and leadership development opportunities, mentoring, networking and other training programmes promoting female role models in public life and encouraging active engagement of men in promoting gender equality.

• Monitoring gender balance in public institutions, including in leadership positions and different occupational groups, through regular data collection, such as the use of employee surveys, and reassessing its alignment with overall gender equality objectives and priorities, considering the results of evaluations.

• Adopting measures to tackle the root causes of barriers to women’s access to decision-making positions and to improve women’s image in society by developing information campaigns and awareness-raising programmes about gender stereotypes, conscious and unconscious biases and social and economic benefits of gender equality while addressing double or multiple discrimination.

Source: OECD Recommendation of the Council on Gender Equality in Public Life, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0418.

Enhancing gender equality in the judiciary in Peru

In 2021, Peru achieved gender parity within the Supreme Court of Justice as more than half of the judges of the Supreme Court were women (compared to 30.6% in 2020). That said, most were temporary (as they were tenured Superior judges from different courts at the national level), which can pose challenges to ensuring ongoing parity (Huaita Alegre, M., 2021[55]). This was reached in the context of the development and implementation of the National Policy on Gender Equality, one of the objectives of which is to achieve greater participation of women in decision-making spaces and reduce institutional barriers to that aim.4 The appointment in 2021-22 of a woman president of the judiciary turned gender parity into an institutional objective. It boosted reforms to achieve parity in management positions and the chambers of the Supreme Court, using her functions and power to allocate women to these positions.

Table 4.6. Gender parity among judges of the Peruvian judiciary, June 2023

Category	Total	Men	%	Women	%
Supreme Judge	63	41	65	22	35
Higher Judge	820	539	66	281	34
Specialised or Mixed Judge	2 072	1 159	56	913	44
Justice of the Peace (Judge)	640	319	50	321	50
Total tenured and provisional judges	3 595	2 058	57	1 537	43
Justice of the Peace June 2022	5 599	4 902	88	697	12
Total	9 194	6 960	75.70	2 234	24.3

Source: OECD’s own elaboration with information provided by the Peruvian judiciary on 23 November 2023, through Oficio No. 5982-2023-GRHB-GG-PJ.

Not counting Justices of the Peace, men constitute 57% and women 43% of magistrates across the judiciary in Peru (see Table 4.6). However, the number of women decreases when it comes to higher positions. For instance, the Executive Council of the Judiciary, as a body that plays a key role in the development of the General Policy of the Judiciary and its Development Plan and in the approval of the judiciary’s budget proposal, is composed of four men and one woman, (as of November 2023).

As of June 2023, women constitute 35% of Supreme judges. There are only six women-tenured judges within the Supreme Court against 16 provisional, which does not ensure their permanence. Likewise, only 34% of women are Higher judges, of which 47% are tenured judges. In the case of the Presidents of Higher Courts, only 8 are women, while 27 are men (23% compared to 77%) (see Table 4.7).

Table 4.7. Gender parity among Presidents of Higher Courts in Peru, June 2023

	Absolute numbers	Percentage (%)
Men	27	77
Women	8	23

Source: OECD’s own elaboration with information provided by the Peruvian judiciary on 23 November 2023, through Oficio No. 5982-2023-GRHB-GG-PJ.

The achievement of gender parity has been the least successful in criminal, civil, mixed and transit judges, with 65% in these speciality disciplines being men and 35% women in 2021. On the other hand, women, family and contentious-administrative judges surpass men (68% women to 32% men, and 59% women to 41% men, respectively).

Gender parity and diversity are important across all areas of the judicial system but take on specific importance in criminal and civil law, as the bigger number of gender-based cases are found in these specialities, which is why it is necessary to identify barriers to and opportunities for gender equality and adopt measures to ensure greater numbers of women applicants and to widen gender balance. If the composition of the judiciary reflects the composition of society, gender parity can confer added legitimacy on the judiciary as it will be perceived as being more capable of delivering equal justice for all and upholding equality before the law (OECD, 2023[51]).

As the appointment of women Supreme Court judges is due to the political will and attributions of the President of the Supreme Court, it is important that parity within the Supreme Court, the judiciary and other justice institutions be achieved in a permanent and institutionalised way. While current progress is laudable, in view of the temporary nature of the appointment of provisional judges, there could be significant backsliding if there is no institutionalised approach to ensure gender-balanced appointments in the judiciary.

It is important to engage different justice sector actors to advance gender equality. This includes the Junta promoting the selection and appointment of women as tenured judges and implementing training and measures to reduce gender bias and gaps. It also includes AMAG to build capacity on gender equality and gender-based violence through workshops to support women candidates in preparing for the judicial selection process.

In Peru, the Commission on Gender Justice played a crucial role in the promotion of gender equality and in enhancing gender diversity within the institution. As seen in Chapter 3, the Commission is mandated to promote the guarantee of equal access to justice for the population and to strengthen the judiciary’s work towards this objective by establishing the gender approach as a policy to be applied at all levels and organisational structures. Besides the Commission, there are 35 District Commissions of Gender Justice at the national level, each with its own annual plan and receiving support from the main commission.

The 2019-2022 National Policy on Gender Equality has also considerably contributed to achieving gender equality, greater political participation, and access to decision-making roles for women.

Building on good practices adopted by the Commission on Gender Justice, it is important to monitor gender balance systematically through regular data collection, such as the use of employee surveys. It is also critical to use the results of evaluations in assessing the alignment of practice with overall gender equality objectives and priorities and, if necessary, adjust course if monitoring information points to these objectives not being met properly (OECD, 2023[51]).

Even though the judiciary has demonstrated a good start with the implementation of the surveys and considering that most of these policies and activities are recent, it is crucial to develop well-defined gender objectives linked to priority actions and clear timelines, monitor their implementation, and evaluate their impact against set targets (OECD, 2023[51]). Furthermore, adopting an institutionalised approach to ensure gender-balanced appointments in the judiciary is important. The role of the Junta is central in appointing women-tenured judges, as is co-ordinating with the judiciary for this purpose. Gender equality in the judiciary needs to be achieved at the national, judicial districts, and court levels in the long term.

4.5. Summary assessment

While Peru has taken active steps to put in place a comprehensive institutional framework to ensure sound governance in the justice sector, the country’s fragmented justice management system has blurred lines of responsibility. This tends to intensify overlap, duplication and conflicts of authorities and competencies in the governance of the judicial system, while limiting their accountability.

Mechanisms governing budget allocation to the justice sector, including co-ordination and negotiation arrangements used to define this allocation, appear restricted. The judiciary engages in limited system-wide, medium-term strategic planning, including budgetary and financial planning, and has yet to develop monitoring and evaluation frameworks that can be used to demonstrate to itself, MEF and the public the impact of its spending on improving legal and judicial outcomes for people. In addition, evidence suggests that in some instances, the courts are unable to fully spend the resources they have been allocated, notably in human resources hiring, and face significant challenges in demonstrating value for money and strategic results from spending the resources they do have. In this connection, public accountability frameworks and mechanisms are uneven across the judiciary.

Most importantly, there is a strong need to strengthen the existing institutional, legal and operational framework safeguarding the independence of judges. The most salient challenges are judges’ ratification, performance appraisal schemes, the high number of judges under temporary employment and the possibility of the Ombuds Office interfering in individual judicial proceedings by direct injunctions.

In addition, even though the remuneration of judges and prosecutors in Peru is considered in line with OECD Member countries, judges in precarious jobs are remunerated less than tenured judges, which is a risk to their impartiality. A similar conclusion can be reached for prosecutors. Moreover, there is a risk that even formally tenured judges and prosecutors (titulares) may not be impartial due to the system of judge’s ratification and performance appraisal, which can be used to influence judges’ decisions or be used as a sanction, as mentioned by the IACHR.

The analysis of the judicial recruitment system also highlights that the Peruvian system may be characterised as a mix of the civil service model, common in civil law countries, but leaning toward a position-based system rather than a career system. It could also be categorised as a professional system prevalent in Anglo-Saxon countries, although with a range of relatively discretionary decisions in the recruitment process and little guarantees of due process for those willing to participate in it.

The legal framework for disciplining judges contains all the standard elements found in OECD Member countries in the Constitution, criminal procedural laws, disciplinary sanctions and breaches of codes of ethics. However, the ambiguity and lack of precision regarding the application of sanctions may allow for different interpretations and criteria of what is sanctionable and how. The vagueness in regulating some disciplinary misconduct carries the risk of arbitrary application and violation of judges’ independence. Therefore, consistency and equal treatment may not be guaranteed. This limited clarity regarding the law and the absence of harmonised and unified criteria governing the application of disciplinary rules could be explained by the existence of three different bodies that conduct disciplinary proceedings for magistrates, public prosecutors and jurisdictional auxiliaries: the Junta (as an autonomous and independent institution), the OCMA (soon be replaced by the National Control Authority of the Judiciary) and the Executive Council of the Judiciary, both part of the judicial branch. Consequently, the effective implementation of the norms to enforce disciplinary rules and integrity within the justice system and safeguard the independence and impartiality of judges can be better defined.

Finally, gender equality within the judiciary and the measures adopted for its promotion have increased, partly due to the appointment of women to high-level positions and the political commitment to increasing gender parity and women’s representation in the justice system. It would be important, however, to further institutionalise these practices to ensure sustainable and equitable approaches. This aspect will be further developed in Chapter 6.

4.6. Recommendations

A range of institutional, legal and structural constraints limits Peru’s ability to modernise its justice system in a way that would render it more transparent and independent. In light of the above, Peru could consider implementing the following recommendations:

4.6.1. Key recommendations:

Take measures to ensure the constitutional guarantee of judicial independence, including the overhaul of the performance appraisal, ratification and evaluation of sitting judges to avoid risks to their independence and impartiality. To facilitate the implementation of this recommendation Peru may consider:

• Guaranteeing judges’ full independence and impartiality, ensuring they can deliver justice free of interference and bias. Several factors currently undermine judicial independence and impartiality. Some relate to the current human resource management system (ratification, performance appraisal and widespread temporality). Other factors stem from the legally recognised possibilities of other powers or institutions (e.g., the Ombuds Office or the National Board of Justice [Junta]) to encroach upon the decision making of judges while deciding individual cases. The substantive contents of judicial rulings should not be evaluated by administrative instances outside the appeal system before higher courts, as is the case in OECD Member countries.

• Reviewing the current ratification and evaluation of judges, as recommended by the IACHR decision on Cuya Lavy and others v. Peru of 2021 and the JUSDEM. The ratification and evaluation mechanisms may negatively affect the independence and impartiality of sitting judges and prosecutors while being detrimental to efforts to prevent corruption at the same time.

• Re-evaluating the remuneration system of judges and prosecutors. Given the circumstances, by OECD averages, Peruvian judges enjoy proportionally similar salaries, except for supernumeraries, whose remuneration is about 30% of that of tenured judges in Peru. However, clarifying the remuneration system for the judiciary and prosecutors could enhance legal certainty and improve internal and external equity in the system.

• Reinforcing accountability mechanisms of judges and prosecutors. The accountability framework for judges, as any accountability framework, needs to be carefully designed so that it minimises the potential for arbitrariness, abuse and malpractice when it is applied. Applying these tools, therefore, requires clear guidelines that protect the integrity, transparency, independence and impartiality of the judicial decision-making process.

• Modernising and streamlining the disciplinary system of judges using OECD Member country best practices. The legal ambiguity and lack of precision regarding the application of sanctions allow for different interpretations and criteria of what is sanctionable and how, not guaranteeing equal treatment.

Further clarify the roles and functions of the highest bodies of the judiciary to avoid overlap and duplication as well as conflicts of authorities and competences. This is of particular importance in the case of investigation and sanction of magistrates. To implement this recommendation Peru may consider:

• Better defining the roles and functions of Peru’s judiciary’s highest bodies to avoid overlap and duplication. The judiciary could consider better defining the roles and functions of its highest bodies to avoid overlap, duplication and conflicts of authorities and competencies. This is particularly important in the case of investigation and sanction of magistrates, as the Judicial Power Executive Council (CEPJ), the OCMA and the Junta have competence on this issue. The same recommendations apply to the programmes currently operated by the judiciary (such as legal counsellors) with a view to identifying how greater efficiency and effectiveness can be achieved through the transfer of responsibility to the Ministry of Justice and Human Rights (MINJUSDH) or, with co-ordination, to another part of the executive (such as the Ministry of Women and Vulnerable Populations).

Continue to implement measures to reduce judges’ and prosecutors' temporality (provisional and supernumerary), with a view to safeguarding their impartiality. To facilitate the implementation of this recommendation Peru may consider:

• Reducing the number of judges and prosecutors under temporary employment contracts (supernumerary). The elevated level of temporality of judges and prosecutors limits the autonomy and independence of the judiciary and the Public Prosecutor’s Office, as these do not benefit from the same legal protections and benefits as tenured judges and prosecutors. Increment the number of permanent position holders or tenured judges and prosecutors (titulares), including selecting and appointing women in permanent positions to promote gender parity.

• Take measures to ensure fair, impartial and merit-based treatment of judges regarding their selection, lifelong training and sanctions, including by overhauling the selection system and strengthening pre-entry training of judges and prosecutors. To facilitate the implementation of this recommendation Peru may consider: Overhauling the selection system of judges and prosecutors. A greater emphasis on pre-entry training and strengthening the role of the AMAG in the selection process should be made as most decisions in the current selection system are either incontestable or discretionary. This creates a significant risk of impropriety in the selection of judges and prosecutors.

• Strengthening pre-entry training of judges and prosecutors. The state should finance pre-entry training, not only for interested individuals; it should ensure that this training offers a proper variety of courses that will enable judges and prosecutors to consider the needs of society, including those of its most vulnerable groups, properly. Continuous training should be mandatory and fill knowledge gaps identified in training needs analyses.

Take steps to strengthen judiciary budgetary management and performance, including system wide strategic planning, developing performance indicators, and designing and using monitoring and evaluation frameworks respecting judicial independence and the judiciary's needs to carry out its constitutional mandate successfully. To facilitate the implementation of this recommendation Peru may consider:

• Developing more effective co-ordination between the judiciary and the Ministry of Economy and Finance, and more systematic support to the judiciary on the part of MEF and other ministries (especially Justice and Human Rights, but also Education and Interior), notably by bringing about deeper discussions on the social role and mission of the justice system as a necessity of the state and society. This focus should include institutionalising and properly resourcing whole-of-system co-ordination mechanisms and training for the judiciary (including for the Junta and other key judicial system actors) in medium-term, system-wide strategic planning, in the development of performance indicators and in the design and use of monitoring and evaluation frameworks respectful of judicial independence and the needs of the judiciary to carry out its constitutional mandate successfully.

4.6.2. Medium/Long term recommendations

Continue strengthening gender equality in the judiciary. To implement this recommendation Peru may consider:

• Continue enhancing and institutionalising gender parity in the judiciary and prosecution service. Implement policies and adopt measures to advance gender parity in all disciplines and areas of the judicial system and in the composition of the judiciary. The role of the Junta is important in achieving this objective. Therefore, it is crucial to engage relevant actors within the justice sector to advance gender equality, including the Junta, in selecting and appointing women as tenured judges and implementing measures and training to mitigate gender bias and reduce the existing gender gaps. Entrust the Academy of the Magistracy with capacity building on gender equality and gender-based violence with workshops to support women candidates in preparing for judicial selection processes.

• Adopting an institutionalised approach to ensure gender-balanced appointments in the judiciary and monitor gender balance systematically through data collection. Use the results of evaluations to assess the alignment of practice with well-defined gender objectives and priorities by implementing the 2015 OECD Recommendation on Gender Equality in Public Life [OECD/LEGAL/0418].

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Notes

← 1. .Resolution of the Executive Council of the Judiciary of 18 August 2021.

← 2. ^.Regulation of Organisation and Functions of the Supreme Court and Government and Control National Organs, approved by Administrative Resolution 0321-2021-CE-PJ from 27 September 2021.

← 3. ^.Organic Law on the Junta, art. 71.

← 4. ^.National Policy on Gender Equality, approved by Supreme Decree No. 008-2019-MIMP.