STRENGTHEN THE TRUST OF THE CITIZENS. Institution: National Autonomous University of México (UNAM).

Transcription

1 THE ON-LINE ADMINISTRATIVE CONTENTIOUS PROCEDURE. IMPROVING THE CAPACITY OF THE PUBLIC ADMINISTRATION TO STRENGTHEN THE TRUST OF THE CITIZENS By: Gladys Fabiola Morales Ramírez Institution: National Autonomous University of México (UNAM). Address: Viaducto Miguél Alemán, No.176, México City, México. Contact: Telephone:

2 THE ON-LINE ADMINISTRATIVE CONTENTIOUS PROCEDURE. IMPROVING THE CAPACITY OF THE PUBLIC ADMINISTRATION TO STRENGTHEN THE TRUST OF THE CITIZENS IN THE GOVERNMENT ABSTRACT: The online contentious administrative procedure, created in Mexico by decree on June 2009, is one of a kind trial that uses technology to make more efficient the stages of a contentious administrative procedure (notifications, evidentiary, resolutions, etcetera). This electronic juridical procedure constitutes the most modern, economic and expeditious way to access the administration of justice for Mexican citizens. Considering that the Informatics Technologies (IT's) are a way to improve public management, increasing the effectiveness and quality of public services, this paper analyses the legal and technical aspects of the online administrative contentious procedure, and discuses its viability as instrument for the improving the relation between citizens and government, developing the capacity of the Public Administration to guarantee the rights of access to administrative justice and access to information. CONTENT: I. Introduction II. Information Technologies (IT s) and Public Activity III. The Online Administrative Contentious Procedure IV. The Online Administrative Procedure. Strengthening the trust of citizens in Government

3 I. Introduction The access to justice is a human right recognized by diverse declarations and constitutions around the World. For Mexican people, this right is guaranteed for the Federal Constitution. The article 17 th, second paragraph, of the Mexican Constitution establishes that all people has the right to prompt, expeditious and impartial access to justice. The American Convention of Human Rights, international instrument of mandatory compliance in Mexican territory since the 80 s, also recognizes this right on article 25 : Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties. In Mexico the administration of justice, especially the administration of administrative justice, for several years has been suffering from a lack of efficiency. Since the expansion of the jurisdiction of the Fiscal and Administrative Federal Court, in 2000, the number of lawsuits submitted to the Court has almost triplicate. As a matter of fact, from the year 2000 the number of cases submitted to the Federal Court of Fiscal and Administrative Justice increased almost three times, in a period of seven years the number of cases went from 37,511 to 118, As the number of judges and the staff of the Court haven t increased in proportion of the cases, the resolution of them has been delayed, affecting the

4 right to a prompt an expeditious justice. So, on June 2009, as an effort to increase the efficiency of the administrative justice, the chamber of deputies approved the reform of several articles of the Fiscal and Administrative Federal Court s organic law and the Federal Law of Administrative Contentious Procedure (FLACP). The reform established a new way to prosecute claims against the public administration; this was the on-line administrative contentious procedure. Although the use of information and communication technologies by the public administration, and by other areas of the State that develop administrative functions in Mexico, is quite common today, this procedure is the first tool that allows government to entirely handle the citizen s requests for legal decisions. It is the purpose of this paper to explore the characteristics and operation of the on-line administrative contentious procedure and analyze how it might contribute to the strengthening of trust from Mexican citizens trough the improvement of the provision of administrative justice and of the mechanisms of transparency and access to information. II. Information Technologies (IT s) and Public Activity Since the 19 th century, technology became a necessary tool for performing human activities. Although, machines were not well received initially, today no one can doubt that they have affected all of our lives, in our homes, our work, and our classrooms. 2 Specially, the information and communication

5 technologies have had a transforming effect in society, and that includes the way people organize. In the digital era, the State, and it s juridical system, has had to, not only regulate the new social interactions emerged from the popularization of informatics technology, like the Internet, but also has taken advantage of them in order to improve the provision of public services and the relationship with citizens. Today, as Clara Álvarez says, Governments are transcendent actors for the Internet. Depending of each country, governments have adopted different attitudes and participated in different ways on the Internet. [ ] Some countries like China and Cuba have distinguished for using the Internet as a method for control and censure. 3 Other countries have used the Internet to benefit the citizens, improving the provision of public services. This phenomenon is known as digital government, a public policies project that programs actions associated with the efficiency of the public administration and the relation between government with citizens and companies. 4 Talking about Mexico, it was the first country of the Hispanic America that connected to the Internet in 1989 (one year before Spain). The first websites were developed with academic proposes by the most important Mexican Universities (National Autonomous University of Mexico, National Polytechnic Institute). However, the use of Internet in Mexican public administration is kind of recent, the expansion of Internet in public Mexican departments found some

6 difficulties, some of those, the recent bureaucratic adaptation of technologic culture and the lack of infrastructure, and the problem of <<informatics analphabetism>>. Despite these difficulties, since Mexico joined the Tunis Commitment 5 in 2005, great efforts have been made in order to introduce the use of Internet and other IT s in all public sectors. Nowadays, Mexicans can use the informatics tools to obtain information or to run a procedure. Little by little, the Mexican public administration has started to take advantage of the Internet (and other IT s) in different levels. Here are some examples. For instance, the Legislative power 6 uses the Internet mainly to communicate and inform citizens about its activities. The Federal Law of Transparency and Access to Public Governmental Information requires deputies and senators to publish on their web sites information about the structure, and conformation of each organ, as well as about the process of creation of normative measures. On the other hand, the Executive or Administrative power is the sector of the State that most uses technology on the development of public services. The online administrative contentious trial is the main example, but there are other systems that have been operating from years now. For example, the Department of Public Education (department of education) implemented a program called Enciclomedia, an interactive tool 7 for elementary school teachers.

7 Another area of the public administration that has taken advantages of digital technology is the Department of Finance. Since 2006, the Federal Fiscal Code regulates the use of digital documents, certification and advance electronic signature (e-signature), so citizens may fulfill their tax obligations by using Internet. Concilianet is another informatics system that improves the communication between citizens and public servers. The system was developed by the Federal Attorney's Office of Consumer with the purpose of prosecuting the complains of costumers against providers of goods and services through an on-line conciliation procedure. One last example, on year 2000 the Federal Law of Administrative Procedure was modified so it could be possible for citizens to submit promotions and petitions before any office of the Federal Public Administration. The public servers, on the other hand, are allow to use the same technology to notify, cite or require information or documentation from citizens. By contrast, the Judicial Power was the last sector that introduced the use of IT s in the development of judicial activities. The decision of introducing informatics tools derived from a national consultation made for the judicial power to citizens about the improvement of the administration of justice in México. Indeed, one of the conclusions of the consultation was that this power should adopt policies for the development of IT s, that would not only be restricted to the acquisition of computers, but that would develop and implement systems and

8 programs for the management and administration of judicial departments, and to even give specific support for jurisdictional activities. 8 So, the by General Agreement 21/2007, the Council of the Federal Judicature established the procedure of assignation, certification and use of the advance electronic signature for use of the Integral System of Tracking Cases. The implementation of the system, says the agreement, will depend on budget assigned to buy software and equipment, so it is still developing. It is also important to mention that the recently approved Amparo s Law project, 9 considers the possibility, for those who request it, to consult, send and receive promotions, documents, agreements, resolutions and notifications by Internet, using the advance e-signature. 10 The study of the on-line administrative contentious procedure then turns even more important, because everything points to this be the first of a new era of legal procedures, the era of digital justice. III. The Online Administrative Contentious Procedure III.1. Administrative procedures Before defining what the online procedure is, I first have to establish what is an administrative contentious procedure. Following professor Daniel Marquez, a

9 procedure qualifies as administrative when two specific circumstances exist: one of the parties in the conflict is the public administration or is the administration itself who resolves the controversy trough it s tribunals, or is an act that generates an administrative act. 11 The administrative contentious procedure fits in the first circumstance; it is an instrument of control of the public administration. With this procedure, citizens may request the revision of an administrative act to a different authority, which issued it, in order to determine the legality of it, and consequently the validity or invalidity of the act challenged. According to the Federal Law of Administrative Contentious Procedure, article 2º, the procedure proceeds against administrative acts, decrees, and agreements with general character, diverse from legal regulations, when autoapplicative or when the interested person controverts them united to the first act of application. 12 The online procedure, we might say that is the virtual version of the traditional administrative contentious procedure. The procedure is the same in all its stages, only processed in another way; so, the rights and procedure requirements are the same and only some formal aspects vary. Therefore, the provisions contained on the FLACP also apply to the online procedure.

10 III.2. The Online Justice System Considering that the on-line procedure consists of the same stages that the traditional administrative contentious procedure, the procedure starts with the filing of a lawsuit and ends with a judgment. The difference is that in the case of the online procedure, all those stages are performed trough an informatics system called Online Justice System, established and managed by the Fiscal and Administrative Federal Court. The system allows users to register, control, process, save, spread, transmit, manage, administrate, and notify the administrative contentious procedure processed by the Court. 13 Choosing between processing a case trough the traditional procedure or the online procedure will always belong to the citizen and, once any of the procedures is chosen, it cannot be changed. If the applicant is an authority, the lawsuit has to be submitted online, it will be printed and certified and, when notify to the citizen, is he who will decide if the procedure will be followed online or traditional. Now, if a citizen is interested on using the On-line Justice System, it is necessary to fulfill certain prerequisites. The first one is to be register as an external user of the system and have a personal access code and a password. The register can be done in the module established for that by the Fiscal and Administrative Justice Court. All public administration departments or authorities, whose acts or resolutions may be impugnable trough the On-line Justice System, must be register on the

11 system. The breach of this obligation is sanctioned in terms of the Federal Law on the Administrative Responsibilities of Public Servers. 14 Another previous requirement is the advanced e-signature, 15 issued by the Tax Administration Service (SAT by it s initials in Spanish). 16 Our legal system recognizes the e-signature as a way to express the will, with the same effects that an autograph signature. Article 4º, of the Federal Law of Administrative Contentious Procedure, establishes that all promotions have to contain the autograph signature or the advanced e-signature, otherwise the promotion shall be consider invalid. Finally, there are also some specific technical requirements to fulfill before accessing the System. Those can be found on the technical and formal guidelines for the submission of the on-line administrative contentious procedure: a1 GHz data processing, a 2 GB RAM memory, an Internet explorer (Internet Explorer or Firefox), Acrobat Reader, some other complements and a network bandwidth of 512 Kb or superior. Not really sophisticated requirements actually. III.3. How does it work? Once the previous requirements have been satisfied, the System offers users the possibility of: a) Submit a lawsuit.

12 To submit a lawsuit, the applicant must access to the On-line Justice System, using a code of access and a password. Once the user has entered the System he can proceed to fulfill the digital form: capture the data of the person who is making the request, also capture the data of the lawsuit itself, register addresses (residence and ), etcetera. Here, the interesting fact is that if the user does not indicate an address, the request will automatically processed by the traditional written procedure. b) Receive Notifications. Legal notifications will be sent by to the parties. If the complainer omits mentioning his address, the lawsuit will be processed by the traditional administrative contentious procedure (article 14, FLACP). When the announcing the notification is send, the System registers the exact date and hour. After receiving that , the user has three times to access the System and read the notification and if he doesn t, the notification will be done by list. This allows the procedure not to be delayed because of the notifications. c) Require Preventive Measures. Preventive measures can be requested at the moment of submitting the lawsuit, in the same document, or after, through a promotion. It is necessary for the user to indicate an address, and sign the promotion, using the advance e- signature in order to validate the promotion. d) Upload evidence.

13 Considering the nature and finality of the online procedure, article 58-K of the FLACP establishes that all documentary evidence must be exhibit trough the Online Justice System. When uploading the document, the user has to determine if the reproduction belongs to a copy, simple or certificated, or of an original. Is also important to point out that all documentary evidences are considered valid. This aspect is really interesting, because the traditional procedure (article 36 FLACP), allows any of the parties to submit an incident of forged documents, when the authenticity of the signature is uncertain. The digital signature can t be copied, so there should not be such doubt about its authenticity. On the other hand, in the case of non-documentary evidence (testimony, confessions, legal inspection or the opinion of an expert), according to article 58- L of FLACP, the Secretary of Agreements would have to digitalize the records of those evidences and certifying them, he also would be in charge of keeping the originals and the good that were presented as evidence. In online procedures, when possible, sued authorities present their testimony by videoconference (article 58-D FLACP). Yet, this is still not possible because most public departments don t have the necessary equipment. e) Appeal. The Online Justice System is designed to allow the submission of the Complaint Appeal, when any of the parties disagrees with a resolution of the Court, with the exception of the final judgment. To present the appeal, the parties have fifteen days after they have been notified, five if they are appealing against preventive measures.

14 f) Present Allegations. The Allegations are to be submitted as digital document through the Online Justice System. Users have 5 days once the instruction stage is closed. g) Sentence. When the Court has made a decision regarding to the case, the parties will be notify by . The law authorizes the Court to resolve the case within 70 days after the closing of the instruction. IV. The Online Administrative Procedure. Strengthening the trust of citizens in Government Retardation of administrative justice represents a violation of the right of Mexicans to access to a prompt and expeditious justice, recognized by the Federal Constitution; also violates guarantee of the effective recourse recognized by the American Convention of Human Rights. This kind of violations, I believe, deeply affects the trust of Mexicans in their government. Counteract the distrust that Mexicans have in their government is not an easy task. The access to administrative justice is only one element of a very complex problem, and even the access to justice can be seen as a complex problem itself, product of many different variables. The Tunis Commitment has recognized information and communication technologies as essential instruments for social, economic and cultural development. The commitment emphasizes the role of IT s in economic growth, increment of productivity and sustainable development, as well as the positive

15 effect they have on promoting peace, security and stability, to enhance democracy, social cohesion, good governance an the rule of law, at national, regional and international levels. However, the commitment also emphasizes that in order to ensure that everyone can benefit from the opportunities that ICTs offer, there needs to be an improvement of access to information and communication infrastructure and technologies as well as to information and knowledge. In Mexico, according to the Internet Mexican Association, just 31 million people out of 112 million have access to Internet, and only 20 of each 100 Mexicans have access to wideband. Mexico is also the only nation that does not have a digital agenda within the countries belonging to the Organization for Economic Cooperation and Development (OECD), according to the Mexican Association of Industry Information Technology. 17 In think that Information and Communication Technologies created by the Mexican government, like the online administrative contentious procedure, certainly offer the advantages of reducing the time for processing citizens requests, and also improves communication between citizens and government, however, the benefits are only for the 27.6% of Mexicans with Internet access. So, despite I consider the online procedure as a useful tool for improving the effectiveness of administrative justice, we can t expect this to be the ultimate solution to guarantee access to justice and to strengthen the relation between citizens and government.

16 Notes 1 The prosecution of an administrative trial takes more than three years, according to the figures of the Fiscal and Administrative Court itself. 2 Janine and Cohen ( 2002: XIII) 3 Álvarez (2011: 45) 4 Téllez (2007: 34) 5 The Tunis Commitment was product of the second phase of the World Summit on the Information Society, held by Tunis in November In México, the Legislative power is composed by the Chamber of Deputies and the Senate, that work together as Congress of the Union. 7 A look to Enciclomedia. What do we know about the program enciclomedia five years from it s creation? 8 Supreme Court of Justice (2006: 21) 9 The Amparo is a remedy for the protection of constitutional rights in México. 10 Amparo s Law Project, approved by the Mexican Senate on October 13, 2011, p. 28: 11 Márquez (2002: 37) 12 Art. 2º of the Federal Law of Administrative Contentious Procedure. 13 Art.1-A, fraction XV of the Federal Law of Administrative Contentious Procedure. 14 According to articles 12 and 47 of the technical and formal guidelines for the submission of the on-line administrative contentious procedure, approved by the Boar of Government and Administration of the Fiscal and Administrative Federal Court. 15 The difference between the e-signature and the advanced e-signature is that the second gathers certain security requirements, such as authenticity, which, as Margarita Palomino says,

17 covers two aspects: a unique link to the author as well as the authentication of such author and the integrity of the message [Palomino (2004:8)]. 16 The e-signature (simple and advanced) was first developed to authenticate commercial activities made trough the Internet. Now, it is useful for proceedings before the Service of Tax Administration. 16 Mexico, lagging in Internet access, CNNExpansion: rezagado en acceso a internet References - Álvarez, Clara Luz, Internet y Derechos Fundamentales (Internet and Fundamental Rights), Porrúa, México, Hiller, Janine and Cohen, Ronnie, Internet Law and Policy, Pearson Education, New Yersey, Márquez Gómez, Daniel, Los procedimientos administrativos materialmente jurisdiccionales como medios de control en la administración pública (The administrative procedures materially jurisdictional as instruments of control in public administration), 2ª edition, IIJ-UNAM, México, Téllez Valdéz, Julio, Derecho Informático (Informatics Law), 3th Edition, McGraw-Hill, México, p Palomino Ovando, Consuelo Margarita, El comercio exterior y la firma electrónica. Estudio comparado de la legislación española y las reformas al Código de Comercio mexicano, in: Axioma, year 4, No. 11, April June 2004

18 Virtual References - Un vistazo a Enciclomedia. Qué sabemos del programa enciclomedia a cinco años de su puesta en marcha en las aulas de primaria? (A look to Enciclomedia. What do we know about the program enciclomedia five years from its creation?): - Amparo s Law Project: /assets/documentos/ley_amparo.pdf - World Summit on the Information Society: - Online Administrative Contentious Procedure website: