ORAL PROCEDURES AND CASE

MANAGEMENT: THE INNOVATIONS

OF CHILE'S REFORM

Cristidn Riego*

1. OVERVIEW

Over the past few years, Chile's criminal justice system has un-
dergone a radical reform. In the early 1990s, the country experienced
a transition to democracy following a seventeen-year dictatorship, and
from the beginning the reform of the judiciary was an important prior-
ity. Soon, that process focused on the criminal justice system, which
was considered obsolete and contrary to individuals' basic rights. 1
Under Chile's old system, authority was concentrated in the
hands of a single judge, the "juez de instruccion," who had powers that
* Professor, Universidad Diego Portales Law School; Academic Director, Justice Studies
Center of the Americas.
1. This idea is clearly presented in the speech offered by President Ricardo Lagos Escobar
when he submitted the new criminal procedure code to Congress. Specifically, he stated:
[W]hile Chile's justice administration system was designed and created mainly at the
mid-point of the 19th century, remaining unchanged since then, Chilean society has
changed in an economic and political sense .... The most important political change in
Chile has been the strengthening of the democratic model, which posits respect for
human rights as a fundamental principle of legitimacy. Both phenomena present grow-
ing demands on the justice administration system, making it necessary to modernize it,
about which an important consensus in the country has developed . . . . The political
changes, for their part, require a justice system that is accessible, impartial, egalitarian
and maximizes guarantees. The need to prevent corruption presupposes the active par-
ticipation of citizens in the oversight of power and that increases the need for an effi-
cient and independent Judicial Branch ....
[Mientras el sistema de administraci6n de justicia en Chile fue disefiado y constituido, en
to fundamental, hacia mediados del siglo XIX, permaneciendo desde entonces sin
cambio alguno, la sociedad chilena se ha transformado en un sentido econ6mico y polit-
ico .... El cambio politico mds importante en Chile ha sido, a su turno, la consolidaci6n
del modelo democrdtico, el que a su vez exige el respeto a los derechos humanos como
un principio fundamental de legitimidad. Ambos fen6menos plantean crecientes ex-
igencias al sistema de administraci6nde justicia, que hacen necesariasu modernizaci6n,
sobre lo cual se ha decantado un importante consenso en el pais .... Los cambios
politicos, a su turno, exigen una justicia accesible, imparcial, igualitariay que maximice
las garantias. La necesidad de prevenir la corrupci6n,supone, a la vez, una activa par-
ticipaci6nde los ciudadanosen el control del poder y ello aumenta la necesidad de contar
con un poder judicialeficiente e independiente .... ] (author's translation).
340 SOUTHWESTERN JOURNAL OF LAW & TRADE IN THE AMERICAS [Vol. 14

are customarily divided among separate public agencies in other legal

systems.2 The judge gathered evidence during a very long investiga-
tion period (generally referred to as "summary") and led the police
investigation. 3 Once the judge decided that the investigation was
complete, he would settle on which charges were to be levied.4 At
that point, the defendant had an opportunity to challenge the evi-
dence or present new evidence after which the judge would render a
verdict and issue a sentence. 5
As such, Chile's old system was, in general, a written one. Evi-
dence was collected and recorded in written files, mainly during sum-
mary.6 The defendant had no access to the case file before the
charges were laid and all defense motions were presented and re-
solved in writing. 7 The written files became the core of the procedure
because they were the basis for all judicial decisions. They were read
by the judge and then by the superior courts in the appeals process.8
In 2000, after a long debate, Congress introduced a new Criminal
Procedure Code9 and created a new prosecutorial agency and public
defense system.' ° Chile's reform followed the ideas presented in the
Model Criminal Procedure Code for Ibero-America. This document
was written primarily by Argentine professor Julio Maier and based
on his experience with the reform that took place in his country dur-
ing the 1980s. 11 The Model Code also draws heavily from German
12
and Italian criminal procedure codes.

2. MAURICIO DUCE & CRISTIAN RIEGO, PROCESO PENAL 55 (2007).

3. C6digo de Procedimiento Penal (C.P.P.-1906) art. 109.
4. Id. art. 424.
5. Id. arts. 448-450.
6. Id. art. 117.
7. Id. art. 426.
8. Id. arts. 401, 405 & 512.
9. The Criminal Procedure Code Bill was submitted for parliamentary review on June 9,
1995, the Statutes of the Criminal Procedure Code Bill was submitted for parliamentary review
on June 9, 1995, the Statutes of the Public Prosecutor's Office was presented on Mar. 23, 1998,
and the law that created the Public Defender's Office was submitted for legislative review on
July 13, 1999.
10. Ley No. 19.640. Establece la Ley Org~inica Constitucional del Ministerio Pdblico
(Diario Oficial, Oct. 15, 1999) (This new agency is presided over by the "Fiscal General" and has
eighteen "Fiscales Regionales," approximately 700 prosecutors and an administrative staff with
about 3000 people). Ley No. 19.718. Crea laDefensorfa Penal Ptiblica (Diario Oficial, Mar. 10,
2001). The total number of defenders in the new system is about 440.
11. See the C6digo Procesal Penal (the reformed Chilean Criminal Procedure Code
("C.P.P.")), specifically page nine of the message that accompanied the original bill signed by
former Chilean president Eduardo Frei Ruiz-Tagle (hereinafter "Ruiz-Tagle Message") (on file
with the author).
12. JULIO MAIER, DERECHO PROCESAL PENAL ARGENTINO 293-94, (1989).
2008] INNOVATIONS OF CHILE'S REFORM

In keeping with the Model Code, Chile's reform established a

completely new system based on two key innovations. The first is the
introduction of public oral trials as a basic right for all defendants. 3
Cases are tried before a panel of three professional judges ("tribunal
oral") or, in lesser cases, before a single judge ("juez de garantias") 4
The prosecutor is required to present evidence supporting the charges
and the defendant may challenge those charges and present new evi-
dence.1 5 Also, in cases involving crimes for which the maximum sen-
tence is less than five years, the parties may agree to simplify the
procedure. a6 In that case, the defendant agrees to allow the judge
who oversaw the pre-trial proceedings to reach a decision based on
the evidence collected by the prosecutor and the defendant's accept-
ance of the charges. 7
The second main innovation is a complete overhaul of the rules
for collecting evidence.1 8 The new code eliminates the judge's partici-
pation in summary, which is instead carried out by the prosecutor in
collaboration with the police.' 9 The process by which the prosecutor
gathers evidence is an informal one and the law does not establish
mandatory steps to follow.2" The prosecutor's work is overseen by the
juez de garantiaswho resolves any disputes that may arise between the
prosecutor and the defense, especially those related to possible viola-
tions of constitutional rights, including pre-trial imprisonment.2" All
of this takes place in preparation for the trial, which is the main proce-
dure. The evidence gathered by the prosecutor has no value unless it
is introduced at trial.2 2
The Code also introduces limited expressions of discretion for the
prosecutor who may opt to dismiss a case (as long as it involves a
minor offense) 23 under specific conditions. This is a restricted form of

13. C.P.P. art. 1, available at http://wings.buffalo.edu/law/bclc/chile.html.

14. Id. arts. 17 & 18. In general, oral trials are held in an Oral Trial Court staffed by three
professional judges in compliance with C.P.P. art. 388. Article 388 also establishes an alternative
procedure called a "simple procedure" by which evidence is presented before the examining
judge. This can be used when the defendant is charged with a misdemeanor or crime for which
the sentence is a maximum of 540 days.
15. Ruiz-Tagle Message, supra note 11, at 21.
16. C.P.P. arts. 388, 406.
17. Id.
18. Id. arts. 180-185.
19. Id. arts. 70, 77, 79.
20. DUCE & RIEGO, supra note 2, at 121.
21. C.P.P. arts. 70, 140.
22. ALEX CAROCCA ET AL., NUEVO PROCESO PENAL 100-02, (2000).
23. C.P.P. arts. 168-170.
342 SOUTHWESTERN JOURNAL OF LAW & TRADE IN THE AMERICAS [Vol. 14

the "principle of opportunity. '24 Finally, in some cases, Chile's new

system allows the defendant and the victim to negotiate a reparation
agreement.2 5
These changes were implemented gradually between 2000 and
2005, through a process that led to a substantial increase in the fiscal
budget that was allocated to the criminal justice system.n It has taken
more than ten years to develop this process, and during that time
Chile has had three different governments.2 7 In spite of this, the Judi-
cial Branch and other agencies have been quite consistent in promot-
ing the reform program. This has also occurred in the context of a
fairly stable economic development process that gave the government
access to the resources needed to implement the reform.2 8

IMPLEMENTATION CALENDAR

Regions Date

First Stage Coquimbo y Araucania December 16, 2000

Second Stage Antofagasta, Atacama y Maule October 16, 2001

Third Stage Tarapaca, Aysen y Magallanes December 16, 2002

Fourth Stage Valparaiso, O'Higgins, Bio-Bio y Los Lagos December 16, 2003
Fifth Stage Metropolitan region June 16, 2005

24. C.P.P. arts. 167-168, 170. The Criminal Procedure Code allows for three manifestations
of the principle of opportunity. Article 167 establishes the provisional file, Article 168 grants
discretion over which investigations to initiate (and the power to decide not to investigate), and
Article 170 sets out the principle of opportunity.
25. DUCE & RIEGO, supra note 2, at 55.
26. Prior to the entry into force of the criminal procedure reform, Chile allotted 0.9% of the
fiscal budget to the justice sector. The cost of the operational expenses alone of the old system
was US$50 million. The reform led to an increase in government spending on justice in 2005.
Some US$350 million were allotted for the implementation of the new system and an additional
US$250 million (approximate figure) have been set aside for annual operating costs. Since the
reform became operational, 2% of Chile's budget has been allocated to the justice sector.
27. DUCE & RIEGO, supra note 2, at 72-88. The original bill that contained the law that
ultimately reformed the criminal justice system was presented during Eduardo Frei Ruiz-Tagle's
government (1994-2000). In that period the legislative process began and all the work related to
the final approval of the project and the planning of the implementation took place. Ricardo
Lagos Escobar was then elected president (2000-2005). During his government the entire imple-
mentation process was put in place, including what was called the trial by fire step which imple-
mented the criminal justice system reform in Santiago, the capital of Chile. Finally in 2006,
President Michelle Bachelet Jeria was elected. As of this writing, the system has worked in the
entire country and now faces what is called the "second generation requirements."
28. CENTRO DE ESTUDios DE JUSTICIA DE LAS AM8RICAS ("CEJA") [JUSTICE STUDIES
CENTER OF THE AMERICAS], REFORMAS PROCELAS PENALES EN AM8RICA LATINA:
RESULTADOS DEL PROYECTO DE SEGUIMIENTO 88 (2005).
2008] INNOVATIONS OF CHILE'S REFORM

29
COST OF THE REFORM

Cost Under Old System Cost Under New System

US$50,000,000 annual operational cost US$212,000,000 annual operational cost
Budget of the justice sector 0.8% of Budget of the justice sector 2.0% of
the National Budget the National Budget
Investment Cost US$300,000,000

II. EMPHASIZING ORAL PROCEDURES

The bill for the new Criminal Procedure Code was presented to
Congress in 1995 and the approval process concluded in 2000.30 Sev-
eral aspects of the original bill were changed in the interim due to two
key factors.3 1 First, information started to emerge regarding practical
operational problems encountered in oral systems in other Latin
American countries. 32 Second, pro-reform groups began to increase
their contact with Anglo-Saxon systems, particularly those of the
United States and United Kingdom.
As a result, during the debate in Congress and through the influ-
ence of legislative advisors, several aspects of the original bill were
modified in order to ensure that the new system's procedures were
developed in a truly oral manner and avoided the reproduction of old
practices under the written system. The influences described above
had a significant impact on later activities related to the system's im-
plementation, which also were strongly geared towards strengthening
the idea of oral procedures at its base.
There are numerous elements that could be described as part of
the information presented above, and I think that it is worthwhile to
explore those that had a significant impact on the system's operation
and have become distinctive characteristics of what some have called
the Chilean model. As we will see, this has influenced the reform
processes that have been introduced since then.
The first such element is the use of oral procedures before the
juez de garantiasand the key role that those judges have acquired in

29. Mauricio Duce, La reforma procesalchilena: gestaci6ny estado de avance de un proceso

de transformaci6n en marcha, in EN BUSCA DE UNA JUSTICIA DISTINTA, EXPERIENCIAS DE
REFORMA EN AMERICA LATINA 233 (Luis Ptsara ed. 2004), available at http://www.biblio
juridica.org/libros/libro.htm?1=1509.
30. CAROCCA ET AL., supra note 22, at 27.
31. DUCE & RIEGO, supra note 2, at 62.
32. Cristiin Riego, Informe Compartivo Proyecto Seguimento, De Los Procesos De
Reforma Judicial En Amirica Latina (CEJA 2001), available at http://www.cejamericas.org/doc/
proyectos/infcomp.pdf.
344 SOUTHWESTERN JOURNAL OF LAW & TRADE IN THE AMERICAS [Vol. 14

the system's operation. Prior to the Chilean reform, the Latin Ameri-
can emphasis had been placed on the idea of oral trial - that is, a
public hearing during which the charges presented by the prosecutor
were resolved in an adversarial fashion.3 3 Judges or panels of judges
were put in place to carry out this function, and codes contained de-
tailed regulations regarding the use of oral methodology for trials.34
However, the same type of attention was not paid to the pre-trial
stages where it was generally set out that the supervising judge would
intervene but without having his or her participation subject to special
regulations. In practice, it was common for those past judges (the
"jueces de instrucci6n")to take on the new position of jueces de garan-
tias and maintain their secretarial staff, buildings and methodology,
which was based on the written model.
In contrast, the Chilean reform placed great emphasis on the de-
sign of the role of jueces de garantias,both in the law and in its practi-
cal application. Steps were taken to ensure that the criteria of using
oral, public and adversarial procedures that were the main ideas of the
reform were strictly respected. As a result, practically all of the im-
portant decisions that are made during the initial stages of the process
are made during a public hearing following the parties' arguments.3 6
This innovation radically changed the daily routine of the justice sys-
tem. Jueces de garantiashear most of the cases and are able to close
many of them. Decisions are issued on specific disputes that tend to
be very visible to the community such as those involving pre-trial de-
tention. 37 In practice, jueces de garantias became the most well-
known and visible element of the criminal justice system, introducing
a completely new image of the operation of the judicial system based
on public hearings that represented a radical departure from the old
model.38

33. CEJA, REFORMAS PROCELAS PENALES EN AMCtRICA LATINA: RESULTADOS DEL

PROYEcTO DE SEGUIMIENTO 53 (2005).
34. JULIO MAIER ET AL., LAS REFORMAS PROCESALES PENAL EN AMIRICA LATINA 107,
290 (2000).
35. CEJA, EVALUACION DE LA REFORMA PROCESAL PENAL EN ECUADOR (2001), availa-
ble at http://www.cejamericas.org/doc/proyectos/ceja-cpp-ecuador.pdf; CEJA, INFORME DE
EVALUACION DE LA REFORMA JUDICIAL PENAL DE VENEZUELA (2003), available at http://www.
cejamericas.org/doc/proyectos/ceja-eval-ref-ven.pdf.
36. DUCE & RIEGO, supra note 2, at 121.
37. Id. at 86-87.
38. L. Ayala, Altas calificaciones para jueces de garantias [Higher grades for jueces de
garantia], THE NATION (Chile), Dec. 6, 2007, available at http://www.lanacion.cllprontus-
noticias/site/artic/20050407/pags/20050407214450.html; L. Ayala, Magistrados rebeldes no
recibirdn sanci6n [Rebellious judges will not receive any sanction], THE NATION (Chile), Apr.
20081 INNOVATIONS OF CHILE'S REFORM

A second element of the emphasis on oral procedures in Chile's

reform involves the accentuation of the adversarial nature of the trial.
As I have already noted, the original bill presented to Congress was
based on the Model Criminal Procedure Code for Ibero-America,
which was in turn modeled on Continental European systems. 39 As a
result of the influence of those traditions and the Latin American tra-
dition of written practice, the first oral trials that were introduced in
our region featured a strong tendency to use the written file generated
during previous stages.4 ° This meant that a series of written docu-
ments, mainly based on the investigative activity of the juez de instruc-
ci6n, or prosecutor, was used at trial. This use of the file took on
several forms in Latin America, including an opportunity to replace
the appearance of a witness or expert with the reading of a written
declaration from an earlier stage, the review of the entire case file by
the judges prior to trial (in some cases a draft sentence was even writ-
ten up based on that reading), and the evaluation of the content of
earlier statements with those presented by a witness at trial, if applica-
ble, taking precedent.4 "
As a result of these practices, the general perception of the use of
oral procedures in Latin American trials was fairly weakened, and in
many cases it was said that they continued to operate on the basis of
written procedures.4n This made the trial little more than the acting
out of the file produced during earlier stages.
Another element that contributed to the perception of weakness
of the use of oral procedures in the Latin American experience was
the major role that was conferred by the law and practice upon judges
in regard to the production of evidence.4 3 In several countries, judges
personally led the production of evidence by posing questions to de-
fendants, witnesses and experts.4 4 They also had the power to organ-
45
ize new evidence and even suspend a hearing in order to do so.
In the earlier Latin American experience, oral trials had several
characteristics associated with the tradition of using a written system
that made it difficult to implement oral procedures. These include a
14, 2005, available at http://www.lanacion.cl/prontus-noticias/site/artic/20050407/pags/2005040721
4450.html.
39. Ruiz-Tagle Message, supra note 11, at 9.
40. MAIER ET AL., supra note 37, at 106-07, 290.
41. CEJA, REFORMAS PROCELAS PENALES EN AMPRICA LATINA: RESULTADOS DEL
PROYECTO DE SEGUIMIENTO 13-16 (2005).
42. Id.
43. Id.
44. Id.
45. Id.
346 SOUTHWESTERN JOURNAL OF LAW & TRADE IN THE AMERICAS [Vol. 14

rigid set of procedures for the collection of the evidence by the prose-
cutor taken from the tradition of the juez de instrucci6n, excessive op-
portunities for suspending the trial for long periods of time, and
extended deadlines for issuing the verdict and the sentence after the
trial.4 6
These problems were noted during the legislative discussion of
the reform, and substantial changes were made to the rules for oral
trial.47 A series of regulations based on Anglo-Saxon legal practice
were introduced that created a version of oral trial that is quite differ-
ent from the most well-known models in the Continental European
and Latin American legal traditions. This vision involves a much
more adversarial model, though it preserves the hybrid nature of the
new system, maintaining several elements of the Continental Euro-
pean tradition. The most important regulations related to the adver-
sarial model for oral trial that were introduced in Chile include, (a)
restricting judges' access to the case file;48 (b) establishing an order for
presenting evidence that is determined by the parties to the case be-
ginning with the laying of charges and ending with the defense; 49
(c) the introduction of a method for direct examination and cross-
examination by the parties;5" (d) keeping judges' probative activity to

46. Id.
47. Ruiz-Tagle Message, supra note 11, at 22.
48. The original regulation included in the bill submitted to Congress stated:
Article 361.- Destination of documentation from the investigation. The court will store
the records from the investigation in the file, returning the documents that may have
accompanied it to the parties to the procedure, and submit to the oral trial court only
those acts that could be incorporated into the debate through their reading. A change
was made in order to avoid interpretations that allow trial judges to receive and read
the various documents produced during the prior stages, and the following text was
eventually approved:

Article 279.- Return of documents from the investigation: The court will return to the
parties the documents that accompanied them during the procedure. This norm is com-
plemented by Article 281, which states just that: The "juez de garantias" will submit the
order to open an oral trial to the appropriate court ....
[Artfculo 361.- Destino de la documentaci6n de la instrucci6n. El tribunal conservari
en su archivo los registros de la instrucci6n, devolverd a los intervinientes en el
procedimiento los documentos que hubieren acompafiado y remitiri al tribunal del
juicio oral s6lo aquellas actuaciones que pudieren ser incorporadas al debate por medio
de su lectura. Para evitar a interpretaciones que permitieran que los jueces del juicio
recibieran y leyeran diversos documentos provenientes de las etapas previas se hizo
una modificaci6n para limitar [ ], aprobAndose finalmente el siguiente texto: I

[Artfculo 279.- Devoluci6n de los documentos de la investigaci6n: El tribunal devolveri

a los intervinientes los documentos que hubieren acompahiado durante el
procedimiento. Esta norma se complementa con las del Artfculo 281 que indica: El juez
de garantia hari llegar el auto de apertura del juicio oral al tribunal competente .... ]
49. C.P.P. arts. 281, 296, 327.
50. Id. arts. 239, 330.
2008] INNOVATIONS OF CHILE'S REFORM

a minimum;51 (e) very strict standards regarding the use of earlier

statements at trial;5 2 (f) establishing a ten-day limit for suspensions of
trials;53 and (g) requiring the court to issue a verdict at the close of the
hearing and a sentence no later than five days from the end of the
trial.5 4
This tendency towards more adversarial trials than those that had
been used in Latin America in prior reforms was reinforced by the use
of training programs for all of the participants in the new system that
focused on oral litigation methods taken from Anglo-Saxon coun-
tries.5 This approach allowed for at least a degree of certainty so that
the change of the model at the legal level would also lead to the adop-
tion of new practices in the trials that were held in Chile.
Finally, this tendency towards the accentuation of oral procedures
also was expressed in the regulation of the procedures before the su-
perior courts, in which emphasis was placed on the use of the oral
method in litigation before the courts of appeal and the Supreme
Court.56 Up until that point, oral hearings had been used to resolve
the main appeals before the Chilean courts, but the decisions were
mainly based on the reading of the case file that was forwarded from
the lower courts.5 7 The new system does not use case files, and the
courts' decisions are based mainly on the presentations by the
parties.5 8
This emphasis on oral procedures has generated important
changes in the Chilean system's operation and the way in which it is
perceived by those who work within it: the community and the public.
In general, a fairly intense adversarial practice has developed in which
prosecutors and defense attorneys compete for judges' attention and
decisions. Also, procedures are public, which make them more visi-

51. Id. arts. 292, 329.

52. Id. arts. 331-34.
53. Id. art. 283.
54. Id. art. 344.
55. Among the most noteworthy publications in this field is the study by Andrds Baytelman
and Mauricio Duce, entitled Litigaci6n Penal, Juicio Oraly Prueba (Ediciones Universidad Di-
ego Portales, Colecci6n Derecho, Primera Edici6n, Santiago, Chile, 2004).
56. CAROCCA ET AL., supra note 22, at 305, 329.
57. DucE & RiFoO, supra note 2, at 503-07.
58. C.P.P. art. 381 states "Antecedentes a remitir concedido el recurso: Concedido el recurso,
el tribunalremitird a la Corte copia de la sentencia definitiva, del registrode la audiencia del juicio
oral o de las actuaciones determinadasde ella que se impugnaren y del escrito en que se hubiere
interpuesto el recurso." [Materials to submit once the appeal is allowed: Once the appeal is
allowed, the tribunal will submit a copy of the final sentence to the court along with the record of
the oral trial or the specific acts that are contested and the document in which the appeal was
brought.] (author's translation).
348 SOUTHWESTERN JOURNAL OF LAW & TRADE IN THE AMERICAS [Vol. 14

ble. This is welcomed by the community,5 9 though decisions some-

times become the subject of strong criticism when they fail to meet
the community's expectations or do not have enough repressive
orientation.

III. THE EMPHASIS ON MANAGEMENT

A second key characteristic of Chile's reform is the emphasis that

was placed on judicial management. The Chilean legal community,
like all others in Latin America, tends to be fairly removed from is-
sues of management in general. This is mainly due to the fact that it is
practically the exclusive terrain of attorneys whose training is gener-
ally limited to the analysis of the law and does not address operational
aspects or notions of the administration or management of the judicial
system. 60 In the case of Chile's reform, the participation of individuals
other than traditional members of the legal community, such as attor-
neys, judges and law professors, reversed this trend.61 These individu-
als included members of the media and the business community
whose points of view were mainly expressed through Fundaci6n Paz
Ciudadana, an NGO that supported and promoted the reform process
from start to finish. 62 Paz Ciudadana's participation led to the incor-
poration of management ideas in the reform process. Also, a USAID
project that was executed in Chile around that time introduced the
idea of applying management criteria in the judicial sphere. 63
This impacted the Chilean reform process significantly. First,
there was a notion that the process of change itself had to be planned,
guided and monitored given that such a complex process could not be
left to a spontaneous application of the law by attorneys, judges and
other justice system officials. This notion was based on the experience
of earlier judicial reform processes in which there was a natural ten-
dency to apply the new law in a manner that just replicated traditional

59. An opinion poll from 2004, IPSOS, shows that 77.2% of the people say that the new
system has made the procedures quicker, 71.1% say that the reform has made the justice system
more transparent, and 75.9% prefer the new than the old system. Another poll from 2006, done
by Adimark and the Ministry of Justice of Chile, shows that 66% of the people say that the
reform reduces delay in the procedures and 62% say that the new system is more transparent.
60. CAROCCA ET AL., supra note 22, at 348.
61. DUCE & RIEGO, supra note 2, at 67-72.
62. Id.
63. Project on Training, Management and Judicial Policy executed by Corporaci6n de
Promoci6n Universitaria (CPU) and funded by the United States Agency for International De-
velopment (USAID). See USAID, USAID Alternative Dispute Resolution Activities in Latin
America and the Caribbean,http://www.usaid.gov/locationslatin-americacaribbean/democracy/
adr/dg-conflict2b.html (last visited Mar. 31, 2008).
20081 INNOVATIONS OF CHILE'S REFORM

practices. 64 As a result, the decision was made that the reform would
be introduced gradually in different regions of the country.6 5 The
gradual implementation schedule was developed using technical crite-
ria in order to allow the new system to be launched first in relatively
controlled environments.6 6 The original implementation plan set out
as four one-year steps over a four year period, but ultimately this was
extended to six years.6 7
Additionally, the new system was only to be used to process cases
initiated after the law had been introduced in that particular region.6 8
Old cases would continue on their course in accordance with the old
law in old courts, which would be maintained and then closed accord-
ing to the schedule for closures that the law established.6 9 The pur-
pose of this exercise was to ensure that the system would be successful
during the initial stages and to provide an opportunity for progressive
learning for new institutions and officials.
The plans for the reform process were quite detailed and ad-
dressed different aspects of the government and the Judicial Branch.7"
As new institutions such as the prosecutor's and public defender's of-
fice were created, a series of steps were implemented to ensure that
the new system would be in force, including recruitment programs,
training for new officials, construction and furnishing of buildings,
funding, evaluation and monitoring, and support for the process in
general.7 ' The systematic approach that was used was unlike any of
those previously seen in the implementation of judicial reform in
Chile or elsewhere in Latin America, at least to that degree. Finally,
the law provided for the creation of an agency, the Committee for the
Coordination of the Criminal Procedure Reform ("Cornisi6n de Coor-
dinaci6n de la Reforma ProcesalPenal"), which would coordinate the
institutions and monitor and evaluate the progress of the reform im-
plementation process.7 2

64. CEJA, supra note 28, at 15-16.

65. DUCE & RIEGO, supra note 2, at 73.
66. DUCE & RIEGO, supra note 2, at 73.
67. See AMCHAM CHILE, Judicial Branch, http://www.amchamchile.cl/node/1028 (last
visited Mar. 31, 2008).
68. C.P.P. arts. 483-484.
69. Law No. 19665, which reforms the C6digo Orginico de Tribunales, transitorial arts. 4-5,
7.
70. Id.
71. Id. at 77-79.
72. The Committee was created by the law No. 19.665 in 2000, available at http://www.bcn.
cl/leyes/pdf/actualizado/160254.pdf.
350 SOUTHWESTERN JOURNAL OF LAW & TRADE IN THE AMERICAS [Vol. 14

There was also an understanding that the regular operation of the

reformed system would require the development of methods for man-
aging cases and the factors that affect their progression through the
system.73 These include the staff of the various agencies, materials,
computer systems, buildings and links to other public services such as
the prison system. In order to meet this second goal of the idea of
management, a strong effort was made to place specialized managers
and administrators in the new system's agencies.74
In the new courts that were created to hear oral hearings
("tribunales orales" and "jueces de garantias"),the structure of the ju-
dicial office was completely overhauled.75 Under the old system, each
judge managed his own office, employees and the administrative func-
tion of the court with the help of a clerk (an attorney at the beginning
of his or her judicial career).76 In contrast, under the new system each
court has a varying number of judges with no administrative responsi-
bilities.77 Such matters were to be handled instead by a professional
court administrator and his or her staff. The administrator is responsi-
ble for ensuring that cases move quickly through the system and that
the statutory deadlines for hearings are met.78
The new system also introduced an important body of administra-
tors within the structure of the prosecution service.7 9 In fact, each of
the main directorships in this institution, such as National or Regional
Prosecutor, is paired with an administrative position filled by a profes-
sional whose job is to support the prosecutor with the help of special-
ized staff.80 Furthermore, the prosecutor's office was endowed with a
complete administrative apparatus for managing cases, staff and the
computer system."1 The public defender's office also boasts a modern,
professional management system that has developed procedures for
overseeing public defenders' activities, software design, and hiring at-
torneys in private practice to serve as public defenders.82

73. CAROCCA ET AL., supra note 22, at 334.

74. ANDRIS BAYTELMAN & MAURICIO DUCE, EVALUACION DE LA REFORMA PROCESAL
PENAL - ESTADO DE UNA REFORMA EN MARCHA 46 (2003).
75. Id.
76. CEJA, supra note 28, at 33.
77. CODIGO ORGANICO DE TRIBUNALES [Organization of courts code] ("CODT"), arts. 14,
16-18, 21, 25.
78. See CCP art. 389 et seq.
79. CODT arts. 20, 23.
80. Organic Constitutional Law No. 19640, which established the National Prosecutor Of-
fice, arts. 20, 34.
81. Id. art. 72.
82. DEFENSORfA PENAL POBLICA, MEMORIAL ANNUAL 2006, at 6 -10.
2008] INNOVATIONS OF CHILE'S REFORM

The existence of all of these professional management systems

within the Chilean justice system now appears to be one of its main
strengths, increasing its capacity for managing cases and producing in-
stitutional coordination. This innovation of the Chilean reform was
also influenced by the previous Latin American experience, in which
the lack of proper management of the system has been one of the
83
main obstacles in the implementation of reform processes.
All of these mechanisms for promoting the management of the
system and the cases have produced important results. They have al-
lowed a large number of cases to be absorbed into the system, pro-
duced significant decreases in case duration and, in general, made
Chile's criminal justice system appear to be effective in terms of its
ability to complete the procedures provided for by law for an enor-
mous volume of cases and in turn producing decisions for each of
them.8 4
Overall, the system has proven itself capable of disposing of dif-
ferent types of cases using the possibilities provided for in the law.
85
CASE DISPOSAL AT THE NATIONAL LEVEL

Period Filed Closed

2000-2006 2,616,375 (100%) 2,375,548 (90.8%)
2006 944,547 (100%) 941,735 (99.5%)

The system also appears to be effective in regard to producing

convictions and other punitive solutions, at least in terms of the large
case volume.

83. See FONDO JUSTICIA Y SOCIEDAD & FUNDACION ESQUEL-USAID, SEGUNDA EVALUA-
CION DEL SISTEMA PROCESAL PENAL EN EL ECUADOR (2006), available at http://www.esquel.org.
ec/gallery/pdfs/SEGUNDA%20EVALUACION%20SISTEMA%20PROCESAL%20PENAL.
pdf. See also PROYECTO REFORMA JUDICIAL DE LA SOCIEDAD PARA LA COOPERACION
T8CNICA ALEMANA GTZ-CHILE, AVANCES EN LA IMPLEMENTACION DE LA REFORMA
PROCESAL PENAL EN PARSES LATINO AMERICANOS (Ministerio de Justicia 2004) available at
http://www.cejamericas.org/doc/documentos/arg-marchisio-avances.pdf; see also CEJA,
REFORMAS PROCESAL PENALES EN AMtRICA LATINA: RESULTADOS DEL PROYECro DE
SEGUIMIENTO (2005), available at http://www.cejamericas.org/doc/proyectos/Rpp-lversion.pdf;
see also CEJA, REFORMAS PROCESAL PENALES EN AMPRICA LATINA: RESULTADOS DEL
PROYECTO DE SEGUIMIENTO, IV ETAPA (2007) [hereinafter IV ETAPA], available at http://www.
cejamericas.org/doc/documentos/CEJAIV.pdf.
84. DUCE & RIEGO, supra note 2, at 80.
85. MINISTERIO PUBLICO DE CHILE, FISCALIA NACIONAL, BOLETIN ESTADISTICO Aiqo
2006 45-46 (2006), available at http://www.ministeriopublico.clRepositorioMinpu/Archivos/
minpu/Boletines%20Estadisticos/Boletin%20estadistico%20anual%202006.pdf.
352 SOUTHWESTERN JOURNAL OF LAW & TRADE IN THE AMERICAS [Vol. 14

86
SOLUTIONS AND DISMISSALS AT NATIONAL LEVEL
I Judicial Solutions (%) Dismissals (%)
2006 36.3 (381,289) 63.7 (670,397)

There is also a fair amount of evidence that the new system re-
solves cases more quickly, particularly in comparison to the old
system:
87
DURATION OF THE PROCEDURES
Average days from commencement
Zones of implementation until June 30, 2007
First group of regions 107
Second group of regions 79
Third group of regions 85
Fourth group of regions 82
Metropolitan Area 73
National average 84

COMPARISON OF CASE DURATION IN BOTH SYSTEMS

88
(OLD AND NEW)
Criminal Procedure Code Criminal Procedure Code
System of 1906 of 2000
Cases closed within 15 1.1% 6.6%
months without
defendant in custody
Cases closed within 15 6.9% 36.4%
months with defendant in
custody

Finally, a very concrete manifestation of the increased speed of

case management is evident in the evolution of the prison population.
Before the reform, half of the individuals in custody had been con-
victed, and half were awaiting sentencing. This began to change when

86. Id. at 8.
87. MINISTERIO POBLICO DE CHILE, FISCALIA NACIONAL, BOLETIN ESTADISTICO PRIMER
SEMESTRE 2007, at 82, available at http://www.ministeriopublico.clURepositorioMinpu/Archivos/
minpulBoletines%20Estadfsticos/Boletin%20estadistico%2OPrimer%20Semestre%202007.pdf.
88. DIVISION DE ESTUDios, EVALUACION, CONTROL Y DESARROLLO DE LA GESTION -
MINISTERIO PUBLICO DE CHILE, ANALIZANDO LA REFORMA A LA JUSTICIA CRIMINAL EN
CHILE: UN ESTUDIO EMPIRICO ENTRE EL NUEVO Y EL ANTIGUO SISTEMA PENAL 12-13 (Vera
Institute Of Justice 2004), available at http://www.ministeriopublico.clVRepositorioMinpu/
Archivos/minpulEstudios/estudio% 20empirico% 20VERA-MP-FINAL.doc.
20081 INNOVATIONS OF CHILE'S REFORM

the reform was implemented. According to the most recent data,

three quarters of inmates have been sentenced and one quarter awaits
trial.

IMAGE 589
EVOLUTION OF CHILE'S PRISON POPULATION
ANNUAL AVERAGE FOR 2000-2007
100%

76%
75%
670.1%
5 1.% 55. 4% 55. 3% 55.5% 650

50%
4S.5% 44.6%
-i.
44.7% 44.5% . -

35%9% -5
25% V
29.9%
24%

0%
2000 2001 2002 2003 2004 2005 2006 2007(*)
Year
1 - Convicted - - - - Arrested/ Defendants I

Moreover, this change in the composition of the prison popula-

tion took place in the context of a significant overall increase of the
same.

89. The table and a detailed analysis of this impact are featured in the study by Marangunic
Herrera Alvarez of the Chilean Public Prosecutor's Office, which was presented at the
Symposium on Violence and Crime III organized by Fundaci6n Paz Ciudadana, Impacto de la
Reforma Procesal Penal en la poblaci6n penitenciariadel pals (2007) (the data contained in the
table covers the period through May 2007).
354 SOUTHWESTERN JOURNAL OF LAW & TRADE IN THE AMERICAS [Vol. 14

EVOLUTION OF PRISON POPULATION AT THE NATIONAL LEVEL 90

Year Arrests Defendants Convicted TOTAL

Number % Number % Number % Number %
1980 1,836 12.1% 7,272 47.7% 6,122 40.2% 15,230 100%
1981 1,853 12.6% 7,110 48.3% 5,763 39.1% 14,726 100%
1982 1,950 11.7% 7,750 46.7% 6,898 41.6% 16,598 100%
1983 2,052 11.1% 8,542 46.1% 7,931 42.8% 18,525 100%
1984 2,081 10.8% 8,617 44.8% 8,524 44.3% 19,222 100%
1985 2,081 10.3% 8,550 42.3% 9,604 47.5% 20,235 100%
1986 2,248 10.5% 9,395 44% 9,705 45.5% 21,348 100%
1987 2,283 10% 10,715 47% 9,815 43% 22,813 100%
1988 2,330 9.6% 11,204 46% 10,820 44.4% 24,354 100%
1989 2,423 9.9% 10,751 43.9% 11,323 46.2% 24,497 100%
1990 2,356 10.4% 9,438 41.8% 10,799 47.8% 22,593 100%
1991 2,265 10.9% 9,435 45.2% 9,172 43.9% 20,872 100%
1992 2,121 10.5% 10,283 50.8% 7,854 38.8% 20,258 100%
1993 2,245 11% 10,425 50.9% 7,820 38.2% 20,490 100%
1994 2,224 10.6% 10,414 49.7% 8,324 39.7% 20,962 100%
1995 2,022 9.2% 10,886 49.4% 9,119 41.4% 22,027 100%
1996 1,920 8.1% 10,699 45.4% 10,948 46.5% 23,567 100%
1997 1,798 7.2% 11,029 43.9% 12,310 49% 25,137 100%
1998 1,887 7% 11.762 43.8% 13,222 49.2% 26,871 100%
1999 2,270 7.6% 12,787 42.6% 14,994 49.9% 30,051 100%

BEGINNING OF THE REFORM

Year Arrests Defendants Convicted TOTAL

2000 2,391 7.2% 13,642 41.3% 17,017 51.5% 33,050 100%
2001 2,115 6.3% 12,891 38.3% 18,614 55.4% 33,620 100%
2002 2,094 6% 13,373 38.3% 19,434 55.7% 34,901 100%
2003 1,799 5% 14,178 39% 20,354 56% 36,331 100%
2004 1,039 2.9% 12,965 35.6% 22,370 61.5% 36,374 100%
2005 1,090 2.9% 11,739 31.7% 24,204 65.4% 37,033 100%
2006 256 0.6% 11,546 29.3% 27,615 70.1% 39,417 100%
2007
(to 194 0.5% 10,284 23.5% 33,245 76.0% 43,723 100%
(to May)1

90. GOBIERNO DE CHILE, MINISTERIO DE JUSTICIA, GENDARMERfA DE CHILE, COMPENDIO

ESTADfSTICO DE LA POBLACION ATENDIDA POR GENDARMERfA DE CHILE 2006, at 13 (2006).
2008] INNOVATIONS OF CHILE'S REFORM

As can be seen, all of these achievements are related to a quanti-

tative and fairly aggregate appreciation of the system. From the quali-
tative point of view, however, the situation is much less clear and
there are several debates regarding the system's effectiveness in
achieving a wide range of objectives related to specific types of
cases.91 However, I will not enter into those discussions, because it
would require focusing my analysis on much more detailed aspects of
the system's operation. For reference, I will just mention a few of the
issues under discussion. One of the criticisms of the system is related
to the treatment of the victims, which is found to be unsatisfactory for
a variety of reasons.9 2 There are also concerns about the fact that
many of the solutions lack a real punitive value or are much less se-
vere than some consider appropriate. 93 Still others are related to the
contribution of the reform process to an increase in the repressive-
ness, particularly in regard to the country's growing prison population,
which is considered a problematic result.94

IV. CONCLUSION - THE IMPACT OF THE CHILEAN MODEL IN

OTHER COUNTRIES IN LATIN AMERICA

The innovations described above and results achieved suggest

that the Chilean reform was different from previous Latin American
experiences in a positive sense. This perception is not only linked to
the technical innovations and the results described above, but also to
the fact that Chile's reform was produced in a context of great politi-
cal and economic stability. 95 Furthermore, it was supported as a long-
term policy by several successive governments and very well founded
by all of them.9 6 All of these factors contributed to a perception that
the new Chilean system had a greater degree of success in regard to
bringing to fruition several of the ideas that had been introduced by
reformers in several countries, but that had not been properly applied
in practice in most of the cases.9 7

91. DucE & RiEGO, supra note 2, at 84-88.

92. Id. at 87.
93. Id. at 84-88.
94. Javiera Dfaz, Sistema Carcelario,la function puntivia en un Estado de Derecho, FLACSO,
Sept. 22, 2005, http://www.flacso.clflacso/main.php?page=noticia&code=886 (last visited Mar.
31, 2008).
95. DUCE & RIEGO, supra note 2, at 76.
96. PETER DESHAZO & JUAN ENRIQUE VARGAS, CSIS AMERICAS PROGRAM, JUDICIAL RE-
FORM IN LATIN AMERICA - AN ASSESSMENT: POLICY PAPERS ON THE AMERICAS VOLUME
XVII, STUDY 2, 4-5 (2006).
97. Id.
356 SOUTHWESTERN JOURNAL OF LAW & TRADE IN THE AMERICAS [Vol. 14

It is also important to recognize that the innovations reflected in

Chile's reform were also introduced in a parallel fashion through
other routes. In general, they are linked to increasing knowledge of,
and contact with, the Anglo-Saxon experience.
A very concrete expression of the impact of Chile's reform can be
seen in countries or states (in the case of federal systems) that have
implemented reforms since then. Most of them have introduced some
or all of the elements mentioned herein. For example, Colombia's re-
form program incorporated the gradual implementation model, the di-
vision between old and new cases, the model of oral procedures at the
investigative stage, and specialized management of cases in the courts
(just for the jueces de garantias).9 8 The reform implemented in the
Dominican Republic included the oral hearings in the pre-trial stage
and the division of cases.99 In the Chubut, Argentina reform, the use
of oral procedures before the juez de garantiaswas introduced. 10 0 The
Mexican state of Chihuahua incorporated the gradual implementation
model, investigative hearings and professional management. 10 1 The
model of gradual introduction by territory and oral hearings for the
investigation phase also were incorporated into the Peruvian
02
reform. 1
In addition to the impact of these processes on later reforms, the
Chilean experience has had an effect on countries that had introduced
reforms prior to Chile's reformation.10 3 In some of those countries,
there are projects or programs oriented to replicate these earlier inno-
vations based on contact with the Chilean case.' 0 4 This occurred for
instance in the Province of Buenos Aires (Argentina), Guatemala and
10 5
Costa Rica.

98. Law 906, 31 Aug. 2004.

99. Law No. 76-02, 27 Sept. 2002.
100. Law No. 5478, 31 Oct. 2006.
101. Decree 611/06 II P.O. 9 Aug. 2006.
102. Legislative Decree 957, 29 July 2004.
103. Decreto Supremo No. 005-2007-JUS, which modifies the official progressive implemen-
tation calendar of the Peruvian Criminal Procedure Code art. 1.
104. C.P.P. arts. 528-530.
105. IV ETAPA, supra, note 18. With respect to Argentina see p. 257; Costa Rica p. 295; and
Guatemala p. 343.