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The (Re)birth of the Justice of the Peace: Democratic or Technocratic Justice Reform? The Experiences of Italy, Spain, Brazil and Portugal
Joo Pedroso* Catarina Trinco *

In most countries, judicial systems are undergoing crises and reforms. An important trend of such reforms is the informalization of justice and the resort to alternative dispute resolution mechanisms. One of the institutional innovations widely used in Latin America and Europe is the construction or reconstruction of systems of so-called systems justices of the peace, in which adjudicativ e functions are entrusted to lay judges. In this paper, we comparatively analyze these systems as they have been established in Brazil, Por tugal, Spain and Italy. We inquire into whether they simply entail a technocratic, administrative adjustment aimed to delegate small-claims cases to lower courts, or whether they also have democratic potential and facilitate access to justice for the majority of citizens.

CRISES AND REFORMS IN THE ADMINISTRATION OF JUSTICE


Since the early 1990S we have witnessed a crisis of justice, in which the defense of citizen rights has not prevailed, but rather the colonization of such rights through debt collection both in civil (in declarative and executive processes) as well as in criminal jurisdictions (bottomless checks). In urban areas, this process is accompanied by an increase in violence, generally linked to theft and robbery relating to drug consumption. While there has been a certain protagonism on the part of the courts (regarding crimes of people with power), at the same time their efforts are suffocated and trivialized by the explosion of routine litigation and by a lack of sufficient resources to respond to this increase in demand (Santos et al. 1996; Pedroso 2000). The courts, particularly those in Italy, France, Portugal and Spain, have been harshly criticized for their lack of efficiency, their inaccessibility, slowness, costs, lack of responsibility and transparency, corporate privileges, the enormous number of preventative imprisonments, and the incompetence of their investigations, among other reasons. In studies on the use of courts in Portugal (Santos et al. 1996), in Colombia (Santos and Garca 2002) and in Mozambique (Santos and Trindade 2003), a very revealing image has emerged of the great distance and mistrust that citizens have towards the judicial system, and of the low level of satisfaction in situations involving legal processes (Santos et al. 1996). This situation of breakdown is common to most countries and is essentially based on an explosive increase in the use of courts by corporations which frequently sue citizen consumers for failing to pay for goods and services. In order to avoid the breakdown of the judicial system, different governments have promoted a multitude of reforms, mainly of the administration of justice and of civil justice. In this way, in recent years the reforms to the administration of justice in the peripheral countries have been balanced between indifference and the increasing interest of inter-

Center for Social Studies of the Department of Economics, University of Coimbra.

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national agencies in implanting judicial systems (Santos 1999); and, in the central and semi-peripheral countries, between what might be called a technocratic administration of justice and the dejudicialization of justice (Santos 1982). The movement towards de-judicialization and informal reforms to justice is part of a complex process of legalization and un-legalization of modern societies and reveals a permanent ambivalence. At times it develops from the initiative of the state, other times it originates in the community. It can be a type of second class justice, but can also be the type of justice that is closest to the citizenry. It can even serve the purpose of clearing courts of mass litigation and improving their functioning (legal debt collection), as well as developing a perspective of social integration, reducing social tensions and creating solidarities through citizen participation and promoting access to law and justice (Pedroso, Trinco and Dias 2002). The informalization of justice is based, on the one hand, on the creation of an alternative or informal justice which stems from the Alternative Dispute Resolution (ADR) movement, which in general comes from social and economic organizations and involves the use of various media, processes and venues for conflict resolution; and from the development of a consensus, reparation and negotiation paradigm, and from community justice. De-judicialization, moreover, consists in the utilization of informal media to accelerate or improve the functioning of judicial processes, in the transferal of the authority to perform conflict resolution to non-judicial bodies, and in the transferal of that same authority to old or new legal professions or to arenas of conflict management/resolution. In this legal reform movement, we can imagine the existence of an integrated system of conflict resolution in which the courts are not the only recourse for a public policy of justice, but which rather involves a new (alternative, complementary and/or substitute) relationship between the judicial and the non-judicial. This new model of justice, which integrates diverse media of conflict resolution, should be constructed so as to be more democratic, more accessible and more efficient. On the one hand, we observe a tendency toward informalization and the de-judicialization of private, labor, and consumer-based disputes, and the transformation of criminal justice with the appearance of new paradigm of deviation, decentralization, consensus and opportunity. On the other hand, we see the (re)birth of the justice of the peace and the transformation of the legal professions in the service of the current processes of social evolution and reforms to the administration of justice. One consequence of the new, integrated system of dispute resolution is the ascension and recognitionby the stateof a public policy of justice which includes the judicial courts and socalled legal and judicial pluralismthat is, which also recognizes legitimate non-legal mechanisms for resolving disputes. In this sense, the informalization and de-judicialization of justice, including the entire ADR movement, constitute mechanisms for the reform of the administration of justice, provided that they uphold the equality of the parties involved and promote access to the law. Only in so doing can this multiplicity of processes make justice more democratic.

PEACE TRIBUNALS: TWO EXPERIENCES FROM SOUTHERN EUROPEAN (SPAIN AND ITALY)
The Tribunals of the Peace in Spain The Organic Law of Judicial Power (1985)

In Spain, the current [system of] the justice of the peace is based in the 1812 Constitution, Article 282. According to the terms of that article, the president of the congress of each population, was responsible for reconciliation, and anyone who wanted to file a suit on the basis of civil issues or injuries incurred had to bring the case before him. At that time there was no separation between the judicial and executive functions. Since that time, there have been many and varied legislative re-

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forms, which demonstrates the lack of a clear model for the justice of the peacewhich has developed unevenly, with different aspects emphasized at points in time; aspects such as the creation of the figure of the justice of the peacewhich is separate and distinct from the president of the congress, the designation and appointment of the judge of the peace, the capacity and attitude of judges of the peace with regard to their legal formation and the determination of their powers. The 1985 Organic Law on Judicial Power (OLJP) made possible the total restructuring of judicial bodies on the national and municipal level. Among the main modifications, it is important to mention the elimination of the district courts and transferal of all of their powers to the magistrates courts and to the peace tribunals. In the text [of the law], the legislature establishes that, in the municipalities that lack a magistrates or appeals court, there should be a peace tribunal with jurisdiction in that province. The appointment of, and requirements for, the position of justice of the peace generate much controversy. According to the OLJP, the judges of the peace are appointed for a period of four years by the corresponding government office of the Supreme Court of Justice, and the appointment is made by those persons elected by the local town council, by an absolute majority vote by the members of the full council who meet the legal qualifications and wish to vote. In the event that there are no candidates, the full council will freely select [candidates]. The requirements for a titular or substitute justice of the peace are the following: to fulfill the requirements for entry into a judicial career (to be a Spanish citizen of legal age), except for the requirement of being licensed in the practice of law, and to be capable of fulfilling all judicial functions with no conflict of interest, with the exception of being able to hold a commercial position. They are laynot professionaljudges, who carry out judicial duties without belonging to the legal profession, although in exercising such duties they find themselves subject to the legal professions regime of incompatibilities and prohibitions. The law further provides that, before a case is tried, it may be submitted to the competent magistrates court or peace tribunal for reconciliation, as these are the only entities with the capacity to see cases of reconciliation. With regard to the value awarded in a case, magistrates are able to award damages of up to C = * * 500, and the judges of the peace, up to approximately C = 50. The process begins with the presentation of the application, which should not be written by a lawyer, since these processes do not demand their services (Lpez 1998: 29-31). In criminal cases, they have authority to see matters relating to crimes involving threats, coercion, slander, counterfeiting, cruelty to animals, disturbing the peace, disobeying an officer, criminal negligence or delegation, and other crimes, as stipulated by the 1995 Criminal Procedures Law. One of the most important tasks carried out by justices of the peace at this point in time is that of judicial assistance, which consists in cooperation among the various legal bodies. The General Council of the Judicial Power provided instructions with regard to the way in which this help should be carried out. It establishes that it should be restricted to the least complicated proceedings, such as notifications, citations, and general acts of communication, thereby seeking to avoid such cooperation in more complicated or weighty matters such as seizures, expulsion, or dismissal from employment (Lpez 1998: 38-39).

THE WHITE BOOK OF JUSTICE: BLIND SPOTS AND NEEDS FOR REFORM OF THE JUSTICE OF THE PEACE IN SPAIN
One of the chapters of the1997 White Book of Justice, from the General Council of the Judicial Power, refers to the justice of the peace. As mentioned above, the current regulation for justices of the peace
** = : Euros. C

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is based on the following criteria: the existence of a court in each municipality, except for those that have an examining magistrate; consideration of the lay practitioner of law as a judge (although it is possible for someone who is licensed in law to be appointed to this position); designation and appointment of the justices of the peace by the town councils, temporary appointment, limited authority; dependency on the town councils regarding personal and material matters (except in the peace tribunals serving a population of more than 7,000 inhabitants), and the provision of a system of organization based on the possibility of establishing secretaries to the peace tribunals, to be regulated by Royal Decree 257/1993, of February 19. From the above, the following scenario becomes clear: the lack of professionalization of those heading the peace tribunals; the coexistence of professionals and non-professionals among the support staff; submission to organizational criteria of decisions that previously had been very open (such as the composition of secretarial appointments), and economic poverty that is only partially attenuated by the congressional subsidies provided under Law 38/1992, of December 29 (which vary between = C 300 for municipalities with a population of less than 500 residents and C = 2.500 for 1 municipalities with more than 7.000 residents). As Alejandro Lpez observed in his empirical study, the peace tribunals in small communitieswhich are headed by lay judges and linked to each other through a common secretariatdo not even have a desk to attend to people who seek their collaboration. In more populated areas, there are judges who dedicate much of their time to the issues before the tribunal and who have a solid knowledge of the laws, which allows them to adequately fulfill their duties. Nonetheless, in the eyes of the law, these two types of judges and tribunals operate at the same level (Lpez 1998: 73). Hence, there are a large number of jurisdictional units with only limited powers that are unable to provide an adequate response to the demand. We must distinguish between two types of peace tribunals: the small town version (in which the justice of the peace assumes the title honorific under the Organic Law of Judicial Power), and the version for larger populations, in which the justice of the peace fulfills a relevant jurisdictional role and processes many cases of legal assistance. However, in populations of less than 7,000 residents, the designation of a suitable person by the town council constitutes one of the greatest problems facing these tribunals, especially in the case of the [court] secretaries. This is because the secretariats of these peace tribunals are occupied by congressional secretaries who, in many cases, totally and permanently paralyze the office. This is what leads Alejandro Lpez to consider it necessary to staff the tribunals with functionaries who are at the service of the administration of justice. There is a latent controversy surrounding the appointment of justices of the peace, which has to do with the eventual politicization of the institution due to the discretion of the town councils in selecting the justice of the peace. This discretion could easily allow for the possibility that a town council would refuse to renew a justices mandate, without having to give any justification for its action (Giraldo 1998: 34). In general terms, the justices of the peace appear to lack both formal training and technical preparation, especially among those who do not belong to a secretarial association of peace tribunals. They are capable people designated by their town councils, but they are not career functionaries. The lack of material resources also creates problems which lead to an excessive lag in proceedings or, whats worse, to proceedings being carried out without attention to the necessary legal guidelines. These circumstances have already precipitated some meetings of the General Council of the Judicial Power regarding the need for justices of the peace to comply with certain proceedings. The 2000 Civil Procedures Law (Ley de Enjuiciamiento Civil de 2000) shows the legislatures attempt to limit the tribunals actions to the simplest proceedings. The fact that the justices of the peace lack
1

These amounts are not distributed to the Autonomous Communities of Catalua, Basque Country, Galicia, Valencia and Canar ias; thus, in order for these communities to assume authority in the administration of justice, they must establish their own quantitative criteria.

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familiarity with the law means that most of the work is relegated to judicial functionaries, which is a source of criticism (Lpez 1998: 59). In spite of all of this, the peace tribunals are very important for the magistrates courts, as they provide an important support in the functioning of the administration of justice. If the tribunals relied on staff who were at the service of the administration of justice, their intervention in matters of judicial assistance would not only be greater but, more importantly, more efficient and with more guarantees. Moreover, the White Book of Justice proves that the high number of peace tribunals produces serious difficulties for the functioning of the supreme courts of justice (some jurisdictions, such Castilla and Len, have 2,000 peace tribunals, which are charged with initiating and following 4,000 processes per year). Other limitations that have been highlighted are due to: the fact that the legal functionaries who lend their services to the peace tribunals are to be paid at the same rate as all other functionaries; a lack of funds or materialsa situation which cannot be resolved by the town councils, given their budget limitations, and their eventual abolition, given their low productivity and efficiency and the increase in their duties. In the event that [the tribunals] are in fact abolished, it will become vital to reinforce the magistrates courts. In Spain, the peace tribunals are in need of urgent reform. There are many opinions [on the type of reform], ranging from the abolition of the institution to its professionalization and the extension of its duties, and even the popular election of the judge (Lpez 1998: 74). According to the aforementioned White Book of Justice, we can no longer imagine lay judges as men of good faith who work ad honorem in their free time. Rather, we must think of an educated judge who has the legal tools which allow him to carry out the duties of his office with dignity and without having to depend on any other functionary, and who is fully integrated into the judicial career (Lpez 1998: 77). Moreover, it is understood that if the justice of the peace were a licensed legal practitioner, he or she could undertake greater responsibility and more efficiently develop the demands for legal support placed on him or her.

THE HONORARY MAGISTRATE: THE JUSTICES OF THE PEACE IN ITALY


In Italy, the figure of the justice of the peace was instituted by Law 374, of November 21, 1991. In January 1993 the first justices of the peace started to work, with the objective of providing citizens with rapid resolutions of low-level civil and criminal conflicts, as an attempt to create a more immediate and concrete brand of justice. Law 468 of November 24, 1999, increased their authority in criminal cases. The justices of the peace were supposed to replace the reconciliation judges and, according to the proposal of the Minister of Justice, Giovanni Maria Flick, they were also supposed to take the place of the praetors, in that they would have the authority to oversee civil and criminal cases (Vallini 1996; Citt di Desenzano del Garda 2001). The justice of the peace is not a professional or career judge, but rather an honorary magistrate. She or he does not have a career like that of a robed judge, but is rather selected among people with special qualifications that are supposed to guaranteeif not a specific background in legal practiceat least a basic familiarity with the law and with the problems facing the administration of justice, in order to fulfill his or her duties for a period of four years. The appointment is made by the President, after deliberation by the Supreme Council of the Magistrature. The justice of the peace should have not only theoretical, but also practical experience in legal affairs. The position is evocative of that of a mediator, as the point of the position does not lie in the simple application of legal norms, but rather in achieving an agreement that both parties consider satisfactory. The requirements for being a justice of the peace are the following: he or she must be an Italian citizen in possession of all civil and political rights; speak Italian, be licensed in the practice of

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law, have no prior conviction for any crime, be physically and psychologically fit, be a resident of one of the jurisdictions in which a peace tribunal already exists or will soon exist, be between 30 and 70 years old, not have any other paid position, whether public or private, and have passed an admissions exam into the forensic profession. People who carry out notarial functions, who direct secretariats or are university law professors, are exempt from this exam (Rete Civica 1998). The Italian legal ruling precipitated a progressive increase in the number of non-professional magistrates, starting in 2000. In April 2001, there were 9,376 honorary magistrates, whereas there were only slightly more than 8,000 professional judges.2 Recently, the legislative decree that instructed the institution of a first level judge, introduced the figure of the honorary court judge, turning to the legislation used for the justices of the peace, leading to the conclusion that the experience of the justice of the peace could extend to all of the honorary magistrate positions. The social importance of the functions of the justice of the peace can be observed in the number of ordinary procedures they have processed.3 In Italy, on average, 1 out of every 75 residents take their cases to the justice of the peace, of which 1 out of every 231 seek them out for ordinary reasons and 1 out of every 110 for special procedures (Vallini 1996). The average duration of each procedure is 124 days, which is one-tenth the time it takes in a court. The justices of the peace are an instrument for the realization of a diverse, everyday form of justice. The justice of the peace is often characterized as a judge of reasonableness or reconciliation, but for now, the latter of these is only a secondary function. At the bottom of the creation of this position is an effort to free up the channels of civil justice through a simple, quick, relatively inexpensive process that can provide citizens access to a justice thatalthough simplifiedis no less rigorous than that practiced in the courts (Giudice di Pace di Alba 2001). According to Gracia Mannozzi (2001: 8), the goal of reducing civil litigation and shortening the turn around in civil procedures, has already been achieved. The justices of the peace have both civil and criminal obligations. In civil matters, their work should be infused with a spirit of reconciliation between the parties involved, without any limit in terms of value or the issue involved, as long as a case is not under the exclusive purview of another judge. Such matters include questions related to labor and family law, among others. [The justices of the peace] also have the authority to decide the allocation of resources for an administrative sanction (a fine). By virtue of Legislative Decree 507/1999, motorists can appeal to justices of the peace if they feel that they have been excessively fined, just as they did in the past with the prefect. The justices of the peace have the authority to resolve the following types of disputes: those involving personal property not exceeding 5,000,000 liras, when such cases are not already before another judge; cases of indemnization relating to traffic accidents and shipping accidents (either sea or river) with a value not exceeding 30,000,000 liras; exclusive and unlimited authority to review cases relating to the planting of trees and bushes and matters of joint ownership, and cases brought forth by a property owner or tenant of a piece of real estate subject to civil arbitration relating to smoke or heat emissions, noise, or similar emissions or propagations exceeding the legal limit. When the amount in question does not exceed 2,000,000 liras, the justice of the peace must make a decision according to reasonable standards of fairness; if the amount exceeds that value, the decision must be based on law. In the cases in which the justice of the peace achieves the collaboration of both parties, the controversy is resolved, thereby avoiding a more prolonged, expensive, and wearing legal suit. If

Of the active honorary judges, 2,900 are justices of the peace, 2,371 vice-praetors, 1,465 assistant prosecutors, 959 young judges (jueces jvenes), 287 special enforcement technicians (tcnicos especialistas en vigilancia), 294 agrarian technical specialists, and 1,000 associated with recruitment sessions (Democratici di Sinistra 1998). Nearly 328,000 ordinary cases were processed in 1997.

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the attempt at reconciliation is unsuccessful, the parties can take their case to the appropriate judge of the judicial branch, aided by their lawyers (Pantaleoni 1999). Italian citizens should utilize the justice of the peace of the area in which the incident took place. There is no charge associated with seeing these justices and no need for the assistance of a lawyer;4 the citizen can be represented by him or herself or by an association, generally a consumerbased organization. To initiate a case, the interested party should go to the place where the Giudice di Pace operates. There she or he can explain the situation to the judge, who will decide whether the case falls within the realm of his/her authority based on the location of the event and the nature of the issue. If the justice does not have authority over the case, he or she will direct the party to the correct judge. If the justice of the peace does have authority, the justice will see the case through, creating a written record of the offended partys oral testimony. At the first hearing, the justice of the peace freely questions the parties and attempts to achieve some form of reconciliation between them. When consensus is achieved, the judge writes up an Act of Reconciliation based on the verbal agreement between the two parties and the process ends. Once the substantiating stage is over, it is up to the parties to definitively specify the events that each deems to be fundamental to the process (defense and exceptions), to produce the documents and to provide the evidence. Following the European Union Councils legislative policy orientation from March 15, 2001, which encouraged the use of mediation and the rights of victims to be informed of criminal proceedings, on January 2, 2002, a law went into effect that increased the authority of justices of the peace in criminal cases, thereby introducingfor the first timean explicit reference to mediation. This law contains a list of sanctionsfines, house arrest, community servicethat apply only to those crimes which fall under the authority of a justice of the peace, and only in the event that the attempt to resolve the conflict through mediation or reparations is ineffective. There are some crimes regulated by the Penal Code and other, special laws, which fall under the purview of justices of the peace; mainly assault, threats and slander.5 Only experience will tell whether such authority will be expanded in the future. Moreover, this law is original in that it embodies a flexible response to crime, given that the justice of the peace can opt for three alternatives: reconciliation/mediation, pure mediation, and a punitive route. In the event that the justice of the peace chooses the punitive alternative, no conditional suspension of the punishment is permitted, thereby guaranteeing the efficacy of the sanction (Mannozzi 2001: 8).

THE JUSTICE OF THE PEACE: EXPERIENCES IN BRAZIL AND PORTUGAL


Brazil The Special Civil and Criminal T ribunals

In Brazil, the search for a more informal justice6 led to the creation of small-claims courts, which work with the aforementioned institution of reconciliation with the goal of avoiding the initiation of a [formal legal] process. Starting in the 1980s, there was discussion of measures to attenuate the so-called judicial crisis. In 1983, the Minister of De-Bureaucratization instituted an initiative that

In the cases of a value not exceeding 1,000,000 liras, the parties can take the case to trial personally. In other cases, the presence of a lawyer is required. According to Grazia Mannozzi, the crimes that the peace tribunals have authority over correspond to approximately 12 to 14% of the crimes committed per year that fall under the Penal Code, according to statistical indices from the past five years (2001: 8). The new conflicts of interest entailed transformations in the type of social interaction and conflict, which threatened society and made it vital to find new mechanisms of conflict resolution. The courts were unable to respond to the increasingly complex and intense lawsuits, provoking dissatisfaction, distrust and a loss of prestige for the justice system (Faisting 1999).

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was the origin of the first measure: the experimental creation of the Informal Reconciliation Council in Ro Grande do Sul. The special small-claims courts, created in Brazil under Law 7,244 of November 7, 1998, were preceded by Informal Reconciliation Courts in different cities throughout the state of So Paulo. The success of the initiative was clearly demonstrated by the number of courts created and installed in 1999: 759 courts throughout Brazil, with 1,170 practicing judges (Faisting 1999: 45). In spite of all this, there were critical voices that saw in the courts a type of second class justice, the so-called justice of the poor. Defenders of the law argued that the idea was not to have two types of justiceone for the rich and an inferior type for the poorbut rather to ration the provision of legal services by distinguishing between complex and simple civil cases (Faisting 1999: 45). The naming of small-claims courts was modified by Law 9,099 of September 26, 1995. As pointed out by Herkenhoff (in Faisting 1999: 45), the Brazilian Constitution refers to less complex civil casesnot to cases of lesser economic value, proposing that they would be more aptly named courts for less complicated civil matters and courts for minor criminal infractions. This law, then, created the special civil and criminal courts that are part of the ordinary justice system and can be created by the Union, in the Federal District and in the Territories, and by the states, for [the purpose of] reconciliation, processing, judgment and execution of the matters within its authority. Although it originated from the same basis as the previous law, it included some novelties, such as the increase in the value of awards to 40 minimum wages, the obligation that a lawyer be present for cases involving between 20 and 40 minimum wages, the increased authority of the courts in criminal matters, and the stipulation that these bodies be present in the states. This law supposed a true revolution of the Brazilian penal process, as it was not limited to importing solutions from other legal systems, but rather coined its own system of consensual criminal justice (Pellegrini 1996: 16). According to the law, the courts actions should be guided by orality ( oralidad), simplicity, informality, affordability and speed, trying whenever possible to achieve reconciliation or a settlement. Each court makes use of legal assistance services to meet the needs of the population in general and to function as lawyers in certain situations. Pinheiro Carneiro confirms that there is considerable movement of people through the special courts, which is not surprising, given that they have authority to see a wide variety of issues, and that reconciliation can apply to other types of issues as well. In order to allow for greater productivity, the Brazilian legislature tried to create incentives for the use of equivalent mechanisms at the jurisdictional level, mainly through reconciliationthe goal par excellence of the courtsand arbitration. The Public Ministry is required to maintain an executive body within the courts, in order to verify whether they meet the goals for which they were established (Carneiro 2000: 110-ff). The legislature attempted to guarantee the principle of accessibility through the regionalization of justice, since decentralization made justice closer to the base, less mysterious and, as a result, more human. State law regulates the organization, authority and composition of the special civil and criminal courts. They can offer notary services and hearings that take place outside of the regional headquarters, as long as they are in cities or towns pertaining to the region and take place on public property. With the creation of special tribunals for trying small-claims cases and with judicial assistance services, the decentralization of justice in the towns assumes that the courts will be centers for information on rights, thereby putting an end to legal disinformation and providing access to justice to the underprivileged classes. The law allows the local norms of judicial organization to extend the authority of the courts to reconciliation of issues over which they previously had no authority, thereby allowing citizens to have greater access and making it possible for [centers for] neighborhood justice to be the place for amicable resolution of all conflicts within the community (Carneiro 2000: 105-106). According to Juan Carlos Vezzula, President of the Brazilian Institute

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for Mediation and Arbitration, 70% of the conflicts submitted to these tribunals are resolved in the reconciliation phase, around 20% are resolved by lay judges, and only 10% are passed along to an official judge (Publication 20/03/2001). The point of the special tribunals is to bring justice closer to the citizenry. To this end, some of the courts function out of shopping malls or even buses: the itinerant courts which have one room for hearings and two for reconciliation. In the case of flying justice, involving disputes over traffic accidents, the bus is equipped with a computer and printer, and is thus able to say on the spot which is the guilty party in the accident, with the help of a digital camera and a sketch compiled by an expert on the bus. The parties frequently reach an agreement, which is sent by fax for official judicial confirmation (Publication from 09/04/2001). In Brazil, the legislature encouraged popular participation in the special tribunals, first in reconciliation, with lay judges who had the authority to direct the proceedings and the judgment under the supervision of a robed judge, and to pronounce a sentence, which would later be authorized by a robed judge. Moreover, lay judges can act as arbitrators with the same powers as a robed judge, using standards of reasonable fairness. In the words of Pinheiro Carneiro (2000), the greater the number of well-known members of the local community who participate in it, the more beneficial this popular participation in the administration of justice will be, especially with regard to reconciliation. The arbitrators are recruited from the members of the community, giving preference to those with a degree in law. The lay judges are recruited among lawyers, preferably with five or more years of experience. The same provision establishes that lay judges are not allowed to act as practicing lawyers before special judges during their term as lay judges. Andr Luiz Faisting (1999) points out that, for the arbitrator, the greatest difficulties emerge from the confusion between that role and the role of judge, and as a consequence, they end up being unable to satisfactorily fulfill either role: as an arbitrator, they run the risk of unconsciously imposing an agreement using the latent threat of their power to decide; as a judge, they might feel compelled to let their efforts at arbitration subvert the mandate of applying the law. This risk incurred by arbitrators, which is the result of the socialization they are subjected to through the logic of the formal justice of decision making, and which is so typical of legal education, implies what has been called the dilemma of the double institutionalization of judicial power, given that different forms of legal practice are created based on different legal logics. One of these forms seeks agreement between the parties through reconciliation, led by a lawyer who fulfills the role of arbitrator, and the other seeks the application of justice through the decision-making powers of the judge (1999: 44). Such logics represent a tension between the formal justice of decision making, and the informal justice of mediation, the two faces of todays justice (1999: 43-44).

THE SPECIAL CIVIL COURTS: RECONCILIATION AND AN ARBITRAL JUDGE


Under the terms laid out by Law 9,099/95, the special civil courts have authority to provide reconciliation, the processing, and judgment of low-level civil matters, namely: cases with a value of no more than 40 times the minimum wage, cases involving expulsion for ones own use, cases of possession involving real estate of value not exceeding the amount indicated, among other matters enumerated in the Code of Civil Proceedings. The civil tribunals are responsible for promoting the collection of debts backed by financial instruments (checks, etc.), the value of which should not exceed 40 times the minimum wage. They do not have authority to oversee fiscal matters or those involving food, or any others that fall under the purview of the Ministry of the Interior, workrelated injuries, processes relating to the state or to the capacity of the individual, as well as those appearing to deal with inheritances. In the event that the party submits a case to the civil courts, they must renounce any credit that exceeds the abovementioned limit, except in the event of reconciliation.

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The judge directs the process with the freedom to determine which types of proof are admissible, to evaluate them and to attribute special weight to the rules of the communal experiences and techniques. In each case, the judges decision will be made according to what he or she deems the most just and fair, with special attention to the social aims of the law and the demands of the common good. There are certain parties which cannot come before the special civil courts, including: the unfit, prisoners, legal entities under public law, national public enterprises, those seeking bankruptcy and insolvent parties. Only physical people can initiate a case, provided that they are older than 18. In the event that a citizen makes a claim against a company or against another party under the protection of a lawyer, the first party may hire a lawyer. In the courts, expenses are only paid for a missed hearing, if the party misses the case, or if the party loses on appeal. The sessions are public and can occur at night. Only those cases considered essential must be registered, in brief handwritten notes using shorthand or stenography. The minutes of the other cases can be recorded onto an audio tape or on an equivalent device that can later be submitted to the sentencing judge. The introduction of a civil action before the special tribunals occurs through the presentation of an oral or written petition presented to the court secretary. After registering the petition, the secretary assigns a date and time for the reconciliation session, which must occur within two weeks of the petition. If both parties appear at that time, the reconciliation session can take place, negating the previous petition and summons. In the event that there is a new grievance on the part of the accused against the plaintiff, the formal argument can be negated and both petitions can be assessed in the same sentence. Once the reconciliation session has begun, the robed or lay judge proceeds to explain the advantages of reconciliation and the consequences of a lawsuit to the parties present. If they decide on reconciliation, the decision is recorded and authorized by the robed judge through an executive sentence. If the defendant does not appear, the robed judge pronounces the sentence. If reconciliation is not achieved, the parties can jointly opt for an arbitral judge. It then falls to the parties to choose the arbitrator from among the lay judges. The arbitrator leads the process using the same standards as the judge, making a decision based on reasonable standards of fairness. At the end of the proceedings, or during the five days following, the arbitrator presents the findings to a robed judge to authorize a sentence that cannot be appealed. In the event that reconciliation is unsuccessful and the parties have not opted to see an arbitral judge, the case is immediately (or within two weeks) taken to an investigation and judgment hearing, provided that doing so would not in any way harm the defense. In these hearings both parties are heard, they produce evidence and, ultimately, a sentence is given. The arguments can be either oral or written, and can make use of any of the defenses material, except for the rebuttal if the judge so rules. In the arguments, the accused can formulate a petition in his or her favor provided that the facts therein are relevant to the controversy at hand. In the special civil courts all morally legitimate means of proof are admissible (except for the use of expert witnesses, which necessarily slows down the process); therefore, the rules of the communal experience or techniques are privileged in the process. The judge can hear up to three testimonials per side and each party is responsible for presenting its witnesses. Oral evidence is not reduced to its written form, since the sentence should refer to the data collected from the statements. The investigation can be directed by a lay judge under the supervision of a robed judge. The elements of the judges conviction should be recorded in the sentence, along with a summary of the relevant events which occurred during the hearing. A guilty verdict cannot be made based on an unsettled monetary value or based on a generic claim. Any sentence that exceeds the tribunals authority is invalid. There is a guaranteed right to appeal after the sentence, which is reviewed by Appeals Division of the special courts, a council made up of local judges. The execution of the

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sentence is carried out by the same tribunal, and any stipulations highlighted in the Civil Proceedings Code are applied secondarily. Andr Faisting (1999) analyzed the functioning of a special small claims court in So Carlos, which had been operating since 1993. The analysis of available data from 1993 to 1995 shows that, over time, the court saw more people, thereby fulfilling the objective of increasing access to justice. In spite of this, the court professionals warned that, if the courts capacity was not enhanced, it would run the risk of importing the problems of the formal justice system; that is, slowness in resolving conflicts. Through data analysis, the author shows that the further along a case proceeds in the steps toward a trial, the less likely it is that an agreement will be reached. Of the disputes submitted to the court, 46.3% ended with an agreement between the parties. When there was no agreement and the case continued to an investigation and judgment hearing, the process was prolonged, due to the fact that it was submitted to formal bureaucratic procedures just like those in the ordinary justice system, in contradiction to the courts guiding principles of orality, simplicity, informality and affordability. It is worth pointing out that in the hearings without the use of lawyers, both the parties and the arbitrators showed more trust and freedom, and the arbitrators were therefore more able to apply symbolic pressure on the litigants to arrive at an agreement (Faisting 1999).
Special Criminal Courts: The Consensual Model of Criminal Justice

For a long time, Brazilian jurists have demanded a more complete and updated criminal process which would allow them to protect all rights and to guarantee the usefulness of their decisions; in sum, a process with results. They appealed to the advantages of an oral procedure, which implies a better evaluation of the evidence and a decision effectively based on the available evidence and the parties arguments. It is also clear that oral methods are quicker, leading to the de-bureaucratization and simplification of justice (Pellegrini et al. 1996: 9). When Law 9,099/95 of September 26which deals with the special criminal and civil courts was finally passed, it was received with great surprise, as it produced a real revolution (legal and mentally) that broke the inflexibility of the classic principle of the obligatory nature of criminal cases (Pellegrini et al. 1996: 18). Legal functionaries had to learn to live side-by-side with the principle of discretion in public criminal matters, and to make room for consensus. Along with the principle of material truth, after 1995 consensual truth also came into being (18). It attempts to try out a new paradigm of penal justice based on consensus, and is concerned not only with the decision made in each case, but also with the resolution of the conflict. One innovation to the Brazilian law, which is due to the positive experience of participation in the civil small claims courts, is the role of lay arbitrators in criminal transactions and, state laws permitting, the intervention of lay judges into certain jurisdictional roles. Moreover, there is extraordinary concern for the victim under this law. It even guarantees that the victim be compensated, as this system is concerned with repaying damages: when the case involves criminal infractions that fall under the authority of the criminal courts, the civil composition can similarly imply the end of punishment. The special criminal courts are composed of robed judges or a combination of robed and lay judges, with authority to provide reconciliation, judgment, and the execution of minor criminal infractions, that is, criminal violations and crimes for which the law designates a maximum penalty of one year, except for those cases in which the law provides a special procedure. The process develops according to the principles of oral testimony, informality, affordability and speed, and whenever possible, attempts to repair the damage suffered by the victim while applying a punishment which does not involve privation of liberty. The responsible police authority writes a detailed statement and immediately presents it to the court in the presence of the guilty party and the victim, and solicits the necessary expert examinations. If, after the written statement is made, the guilty party is either immediately taken to the

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court, or else makes a commitment to later appear before it, he or she is not imprisoned for a flagrancy nor charged bail. If both the author of the crime and the victim appear before the court and it is not possible at that time to hold a preliminary hearing, at that point the earliest possible day and time will be established for such a hearing. In the event that either of the parties do not appear, the court secretary orders a summons for that person and for the responsible civil party, if need be. The Public Minister, the author of the crime and the victim, andif possiblethe responsible civil party, should be present at the preliminary hearing, along with their lawyers. The judge explains to those present the possible composition of damages [to be awarded] as well as the possibility of accepting the proposal of an immediate application of a punishment not involving the privation of liberty. Reconciliation is directed or supervised by the judge. The composition of the civil damages is written up and authorized by the judge through a sentence which cannot be appealed and which has executive backing, all of which can be executed before a competent judge. When the case involves a privately initiated criminal action or a public criminal action subject to representation, the authorized agreement involves the renunciation of the right to appeal or to representation. When there is no agreement upon the composition of civil damages, the offended party immediately has the opportunity to verbal representation, which shall serve as a formal statement. In the event that there is representation, or if the case involves an unconditioned, public criminal action which is not already under review, the Public Minister can propose the immediate application of a punishment which restricts the offenders right, or the application of a fine, to be specified in the proposal. If a fine is the only punishment given, the judge can reduce it by half. The proposal shall not be admitted if it is proven that the author of the crime would be sentenced by the courts to punishment involving the privation of liberty; if, within the space of five years, the guilty party will undergo the application of the restrictive penalty or fine, or if antecedents, the agents social conduct and personalityas well as the motives for the necessary and sufficient circumstances for adoption of such a measurehave not been highlighted. Once the proposal is accepted by the author of the crime and his or her defender, it shall be submitted to a judge for evaluation and, if the judge accepts it, the penalty of restricting rights or applying a fine shall enter into effect. In criminal cases initiated by the public, when there is no application of a punishment due to the absence of the guilty party or the presence of representation, the Public Minister makes an oral denunciation, in the event that there is no need to carry out any other vital procedures. The denunciation shall be made based on the statement of events, with the exception of the police report, dispensing with an examination of the victims body if the nature of the crime has been noted by a medical diagnosis or equivalent evidence. When the case is too complex for a denunciation, the Public Minister can solicit from the judge the remission of the existing specimens. In criminal cases initiated by the victim, it is possible to present oral arguments. Once the denunciation or complaint is made, the minutes are written up and a copy is given to the accused, who is thereby summoned and informed of the date and time of the investigatory and judgment hearing, of which the Public Minister, the offended party, the responsible civil party and the lawyers shall also be informed. On the appointed day and time of the hearing, if there is no possibility for attempting reconciliation in the preliminary phase or for the Public Minister to present a proposal, the hearing proceeds in the same way as in the preliminary phase. No action shall be postponed in the special criminal courts. When it is considered necessary, the judge can employ coercive means to bring individuals to the hearing. Once the hearing has begun, the defense has the first word, in order to respond to the accusation, after which the judge shall either accept or deny the denunciation or complaint. If the judge accepts, the victim is then heard, as well as the prosecuting and defense witnesses, and the accusedif presentis questioned. Then oral arguments are made and the sentence is pronounced. Evidence is submitted in the investigatory and judgment hearing, in which the judge can limit or exclude any evidence she or he considers excessive or irrelevant. Minutes of

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everything that occurred in the hearing are then written and signed by the judge and the parties. The minutes include a summary of all of the relevant events which occurred during the hearing and the verdict, excluding the relaying of basic information, as well as the elements of the judges sentence. With regard to the special criminal courts, the law ends with some final steps dealing with those crimes for which the minimum punishment is of one year or lesswhether or not covered by this law. After making the denunciation, the Public Minister can propose a suspension of the process for a term of two to four years, provided that the accused is not being tried or has not been condemned for any other crime, and that all other requirements necessary for the conditional suspension of the penalty are present. Once the proposal has been accepted by the accused and his or her defense in the presence of a judge, and once the denunciation has been received, the judge can suspend the process and submit the accused to a trial period, with the threat of impositions: reparation for damages (if possible); prohibition against the use of certain places; prohibition against leaving the region where the accused resides without a judges authorization; the need to appear before the court on a monthly basis in order to render an account of his or her activities; as well as other conditions appropriate to the personal situation of the accused, to be specified by the judge. The suspension shall be revoked if, during that period of time, the accused is accused of another crime or refuses to pay damages without any just motive. If the suspension period is completed without revocation, the judge declares the punishment null and void. During the period of the suspension, no prescriptive terms are in place. If the accused does not accept the suspension proposal, the process continues according to the original terms. This procedure is one of the mechanisms of the de-bureaucratization of criminal justice in Brazil, in that it allows for a significant reduction in the number of criminal procedures, [avoids] the slow response on the part of the state, includes the rapid reparation of damages to the victims, the goal of the prescriptions and the re-socialization of the author. Beyond all of those reasons, the conditional suspension obviously does not imply any structure of its own and is immediately applied by judges, allowing them to pay more attention to serious crime. The central criminal court in Brasilia is a model of alternative justice for small criminal claims. It is open from 6am to midnight everyday, including weekends, holidays and legal vacations, and its goal is that the violators be informed of their sanction (agreed upon or imposed) and the nature of the indictment on the same day that they are seen by the court (Publication 09/04/2001).

THE PEACE TRIBUNALS IN PORTUGAL


After the 1989 reform, the CRP provided, through Article 205, N 4, the institutionalization of nonjuridical instruments and forms of conflict. Their decisions and recommendations could not be imposed on whoever appeared before them outside of the jurisdictional sphere reserved for the tribunals, and obviously the citizens who turned to the peace tribunals had a right to appeal before the courts. Through the constitutional reform of 1997, this arrangement came to be included in Article 202, N 4, thereby explicitly consecrating the existence of peace tribunals in Article 209, N2. Law 78/2001 of July 13 is a legal framework that regulates the organization, authority and functioning of the peace tribunals, the mission of whichas spelled out in Article 2is to allow for the civic participation of those interested and stimulate the just composition of disputes through agreement between the parties, that is, [the courts] can and should have a pedagogical and problem solving approach to disputes between citizens, depending on the sensibilities of the clients or the providers (Ferreira 2001: 19). Section 2 of Article 2 establishes the guiding principles for [the courts] approach, affirming that the peace tribunals should be guided by the principles of simplicity, adequacy, informality, orality and absolute affordability.

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The territorial authority of the peace tribunals may cover contiguous groupings of councils by parish, or groups of contiguous parishes within the same council (Article 4, N 1). Costs shall be paid to the peace tribunals, since their activities are not, in principle, free. It is worth mentioning that the general regime of judicial support to citizens also applies within the peace tribunals (Article 40). The peace tribunals have the authority to see declarative cases of a value not exceeding the value allowed within magisterial courts, that is, up to = C 3,740.98. With regard to the types of cases they can handle, according to the terms of Article 9, they have authority to see and decide cases dealing with the fulfillment of obligations, except for those involving a pecuniary loan in which the original creditor is a collective;7 cases involving the turnover of property; cases involving the rights and responsibilities of joint ownership, in the event that the joint ownership assembly has not made it mandatory to resolve disputes through arbitration; cases relating to the real and personal rights to the enjoyment of real estate, and cases of possession involving usurpation and accession; cases involving the right to the use and administration of communal, surface-level, usufruct, useful and living property, and the royal right to periodic habitation; cases involving urban renting, excepting eviction; cases involving contractual and extra-contractual civil responsibility; cases on breach of contract, except for work contracts and those involving rural renting, and cases involving the general guarantee of obligations. The peace tribunals also have the authority to oversee lawsuits involving civil compensation resulting from crimes of simple bodily offense, offense to physical integrity due to negligence, defamation, slander, minor theft, minor damage, alteration of borders, and fraud in obtaining food, drinks or services, provided that criminal participation was not involved or had at that point desisted. According to the above terms, recognition of a request for civil compensation precludes the possibility of using the respective criminal procedure. Each peace tribunal should provide services of attention, of administrative support and may have more than one section if each section is directed by a justice of the peace. There shall also be mediation services available in their offices, with authority to mediate any dispute, including those beyond the authority of the peace tribunals (unless they involve inalienable rights) in order to achieve resolution through an agreement between the parties. According to Diogo Lacerda, Secretary of the state for Justice, mediation works in the peace tribunals as a para-judicial chamber, that is, if a problem can be solved through mediation, it is not passed on to the justice of the peace (Publication 14/02/2001). Mediators may have other jobs beyond the functions they carry out in the peace tribunals. They must have a college degree (not necessarily in law), be over 25 years old, involved in a mediation course recognized by the Ministry of Justice and, preferably, have residence in the area under the purview of the peace tribunal. The mediators lend their services to the peace tribunals, but they are not part of the courts. The justice of the peace should fulfill the following requirements: have Portuguese nationality, be licensed in law, be at least 30 years old, be in full possession of his or her civil and political rights, have no convictions nor have been convicted of any fraudulent crime, and must have completed or be about to complete immediately before assuming his or her post as justice of the peacethe practice of any other public or private activity. Recruitment and selection of justices of the peace is carried out through a public competition using a curricular evaluation and public exams. The justices of the peace are tested for a period of three years and appointed by the Auxiliary Council for the Creation and Installation of the Peace Tribunals, which operates out of the National Assembly.

In Cardona Ferreiras opinion, Article 9, No. 1a, does not prevent collectives from being parties in the peace tribunals; it merely means that they cannot inundate the tribunals with pecuniary issues.

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In accordance with the law or with reasonable standards of fairness, the functions of the justice of the peace consist in rendering decisions for cases that come before the court after first attempting reconciliation between the parties; that is, in the event that attempts at pre-mediation and mediation are unsuccessful. The justice of the peace is not submitted to strict legal criteria and can, if the parties so agree, decide according to standards of fairness when the value of the case does not exceed half the value of the cases under the authority of the magistrates courts. Law 78/2001 of July 13 establishes that the justices of the peace are subject to the same incompatibilities and impediments of judicial magistrates, including the prohibition against carrying out any other public or private office of a professional nature. In any case, as stipulated in the Statute on Judicial Magistrates, they can hold unpaid teaching and scientific research positions if so authorized by the Auxiliary Council, and if it does not in any way harm their service [as justices]. Salaries for justices of the peace are equivalent to those of the highest level of the category of main advisor in an advanced technical field from the general regime of public administration. The process in the peace tribunals begins with an oral or written petition that is presented before the services of attention. The argument, which must be presented within 10 days of the summons, may be verbal. The judgment hearing consists of three stages: a hearing of the parties, production of evidence, and sentencing. If authorized and agreed upon, the decisions of the peace tribunals have the same weight as an equivalent sentence from a magistrates court, as well as having executive backing, if the sentence has a condemnatory aspect. Verdicts from cases in which the value exceeds half of the value under the authority of the magistrates courts can be challenged through an appeal made before the regional court or the court of specific authority in the region in which the peace tribunal operates. In principle, judicial representation is not obligatory in the peace tribunals, despite the fact that either of the parties can be accompanied by a lawyer, a legal intern or a solicitor. The peace tribunals were implemented as experimental projects at the beginning of 2002 in four municipalities: Lisbon, Oliveira do Bairro, Seixal and Vila Nova de Gaia. The Auxiliary Council for the Creation and Installation of the Peace Tribunals was created as part of the National Assembly. After the first five months, the Auxiliary Council undertook an evaluation of its operation, in which it reflected on the functioning of the peace tribunals and listed the principle problems that it detected, namely: the low number of peace tribunals, the limited territorial areas [in which they operated], and overly restrictive limits to (criminal, executive) authority. The general conclusion of the Auxiliary Council was that, despite the limitations and the confirmed legal and statutory doubts and verified rules, the reception of the courts on the part of the citizens had been overwhelmingly positive, with the average length of a process being just one month.

CONCLUSIONS
The origin of the peace tribunals is uncertain; it harkens back to a time in which judges and justices of the peace were selected by councilmen. Since their creation and throughout their history, the central goal of these courts was to provide the community with an alternative solution for the peaceful resolution of the more basic conflicts. Below, we will provide a brief analysis of the experience of the current peace tribunals in Spain, Italy and Brazil, within the analytical context of the (re)birth of these peace tribunals in Portugal. In 1985, Spain approved the Organic Law of Judicial Power 6/1985, which provided for a total restructuring of the national and municipal judicial bodies, including the transference of authority over several issues to the magistrates courts and to the peace tribunals, which therein came to represent the first level of jurisdiction. The judges of the peace are lay not professional, judges who carry out judicial functions without belonging to the judicial career, although during their tenure they are subject to the regime of incompatibilities and prohibitions of the judicial career.
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With regard to the goal of speeding up the process of justice, practice shows that there were much fewer cases involving reconciliation [in the courts]. The same was true of civil actions, since the peace tribunals are only authorized to see those cases involving minor sums. With regard to criminal cases, only a few reached the chambers of the justices of the peace. In effect, before receiving a criminal case, it must first pass through the filter of the examining magistrate, who, after qualifying it as a criminal case, must send it to the justice of the peace. In practice, however, there tends to be a pact between the examining magistrate and the justice of the peace in the sense that the examining magistrate does not send such cases, but sends instead the simple procedures that should fall upon him or her. In this sense, the Spanish peace tribunals are in need of urgent changes. There are many different opinions on what these changes should be, ranging from the elimination of the institution to its professionalization and the expansion of its authority, and the popular election of the judge. The White Book of Justice, published in 1997, recommends establishing a new statute on the justice of the peace that keeps in mind their professional characteristics and the skills demanded of them, and which adequately regulates the process of nomination, remuneration (which should be in line with the circumstances and demands of their post), commitment and responsibilities. In Italy, the figure of the justice of the peace was created in 1991 and began to function in January 1993. [It was created] in order to offer the citizenry the possibility to resolve minor civil and criminal conflicts within a short period of time, as part of an attempt to achieve a more immediate and concrete form of justice At the base of its creation is the intention to clear up the courts through a simple, quick, inexpensive process that provides citizens with access to a type of justice thatdespite being simplifiedis no less rigorous than that practiced in the classic courts. In 1999, their authority was extended to criminal cases. The Italian ruling thereby accompanied the progressive increase in the number of non-professional magistrates in the year 2001 (near 9,000). The functions of the justice of the peace represent an instrument towards the realization of a justice of varied, everyday concerns. The justice of the peace has authority over civil and criminal matters, and his or her role is imbued with the spirit of reconciliation. In civil matters, these justices have the authority to see all cases presented before them by the parties involved, with no limit with regard to [monetary] value or issue, provided that such cases do not fall under the exclusive authority of other judges (mainly those cases related to labor and family law, among others). In the case of criminal matters, the justice of the peace has the authority to judge certain crimes, mainly robbery, threats and slander. Following the legislative policy orientations of the March 15, 2001 European Union Council, which encouraged the use of mediation, and the recognition of the rights of victims to be informed of criminal proceedings, on January 2, 2002, an Italian law entered into effect which increased the authority of the peace tribunals in criminal cases, and whichfor the first timeincluded an explicit reference to mediation. This law legitimates a criminal model which is open to reparationstyle justice, making it possible for mediation to occur between the victim and the aggressor. In the 1980s, Brazil began to discuss different measures to attenuate its so-called judicial crisis. The small-claims courts created in Brazil in November 1984 would give way to the special civil and criminal courts in 1995 (Law 9,099 of September 26, 1995). According to the law, the courts had to be guided by the principles of orality, simplicity, informality, speed, and affordability, and to attempt reconciliation or settlement whenever possible. Each court has the use of a judicial assistance service in order to pay attention to the general population and function as an advocate in certain situations. The legislature attempted to guarantee the principle of accessibility through the regionalization of justice, since decentralization brought justice closer to the base and made it less mysterious and more human. The goal of the special courts is to bring justice closer to the citizens. To achieve this, some of the courts operate out of shopping malls and even buses. state law regulates the organization, authority and composition of the small claims courts, of which there are two types: special civil courts and special criminal courts.
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According to Law 9.099/95, the special civil courts have the authority to perform reconciliation, processing and judgment of minor civil cases, namely: cases with a value of no more than 40 times the minimum wage, cases involving expulsion for ones own use, cases of possession involving real estate of value not exceeding the amount indicated, among other matters enumerated in the Code of Civil Proceedings. In order to propose a case before the special courts, it is enough to present a written or oral petition before the court secretary. The creation of the special criminal court was received with surprise, since it produced both a mental and legal revolution that broke the inflexibility of the classic principle of the obligatory nature of criminal proceedings. Legal functionaries had to learn to live side-by-side with the principle of discretionality in public criminal cases and to make room for consensus. After 1995, the principle of consensual truth took its place next to the principle of material truth. This was an attempt to try out a new paradigm of criminal justice based on consensus; a justice not only concerned with making a decision in the case, but also with finding a solution to the conflict. Thus, for example, crimes that carry a prison sentence of no more than a year allow for the conditional suspension of the process, and the accused who commits a crime and is immediately seen before the court (or makes the commitment to stand before the court) does not have to pay bail nor be detained for flagrancy. With the latest constitutional reforms in Portugal in 1997, the peace tribunals once again appeared in the basic text [of the constitution]. The goal in the creation of the peace tribunals is not just the reduction of litigation, but also the vocation to allow civic participation of the interested parties and to stimulate the fair composition of disputes by agreement between the parties. The experiences analyzed here allow us to conclude that the justice of the peace assumes different forms, ranging from the creation of a justice for minor cases which, on the one hand, clears up the courts, yet on the other hand, makes justice closer and more accessible to citizens. The future of the justice of the peace will always depend on the meaningful development of this democratic aspect.

REFERENCES
Carneiro, Paulo and Cezar Pinheiro (2000). Acesso justia: Juizados Especiais Cveis e aco pblica. Uma nova sistematizao da teoria geral do processo, 2. Edition. Rio de Janeiro, Editora Forense. Citt di Desenzano del Garda. Il giudice di pace, available at: www.onde.net/desenzano/comune/servizi/giudice.htm, April 2001. Democratici di Sinistra (1998). La professione forense, available at: www.democraticidisinistra.it/par.../aequa/documenti/la_professione_forense.htm, April 2001. Democratici di Sinistra. Il giudice di pace, available at: www.democraticidisinistra.it/par.../aequa/documenti/il_giudice_di_pace.htm, April 2001. Faisting, Andr Luiz, (1999). O dilema da dupla institucionalizao do poder judicirio: o caso do juizado especial de pequenas causas, Maria Teresa Sadek, (org.). O sistema de justia, Srie Justia, Fundao Ford, So Paulo, Editora Sumar. Ferreira, J. and O. Cardona (2001). Julgados de Paz: organizao, competncia e funcionamento, Coimbra, Coimbra Editora. Giraldo, Lpez Alejandro (1998). Los jueces de paz en el pas vasco. Fines y medios. Master s Thesis at Oati, Instituto Internacional de Sociologa Jurdica. Giudice di Pace di Alba, available at: www.comune.alba.cn.it/inter/giudpax.html, April 2001. Giudice di Pace di Mondavio, available at: http://www.lanostravalle.it/numero2/pagina8.htm, April 2001. Gomes, Catarina (2001). Dois Julgados de paz comeam a funcionar em Setembro, Jornal Pblico, April 9. Gomes, Catarina (2001). Juizados especiais do Brasil inspiram justia portuguesa, Jornal Pblico, February 14. Gomes, Catarina (2001). Quatro Julgados de paz comeam a funcionar em Setembro, Jornal Pblico, March 20. Mannozzi, Gracia (2001). O enquadramento da mediao no sistema da justia criminal. A rede italiana dos julgados de paz. Enquadramento da mediao: um modelo terico. NewsLetterDGAE. Direco-Geral da Administrao Extrajudicial, Lisbon, Ministrio da Justia. ILSA - Instituto Latinoamericano de Servicios Legales Alternativos. http:/www./ilsa.org.co/

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Pantaleoni, Ilario (1999). Ufficio giudice di pace: un nuovo magistrato al servizio del citadino. Pedroso, Joo (2000). A Arbitragem Institucional: um novo modelo de administrao de justia O caso dos conflitos de consume. Coimbra, CES/ OPJ. Pedroso, Joo, Catarina Trinco and Joo Paulo Dias (2002). O Acesso ao direito e justia: um direito fundamental em questo. Coimbra, CES/OPJ. Pellegrini, Grinover Ada, et al. (1996). Juizados Especiais Criminais comentrios Lei 9.099, de 26.09.1995. So Paulo, Editora Revista dos Tribunais. Rete Civica (1998). Dispozione per la copertura di posti di giudice di pace, available at: www.comune.jesi.an.it/informagiovani/lavoro/disp_pace_htm, April 2001. Santos, Boaventura de Sousa (1982). O direito e a comunidade: as transformaes recentes da natureza do poder do Estado nos pases capitalistas avanados, Revista Crtica de Cincias Sociais 10. Coimbra, Centro de Estudos Sociais. Santos, Boaventura de Sousa, Joo Pedroso, Maria Marques, Manuel Leito and Pedro Ferreira (1996). Os tribunais nas sociedades contemporneas: o caso portugus . Porto, Afrontamento/CES/CEJ. Santos, Boaventura de Sousa (1999). The Gatt of law and democracy: (Mis)trusting the global reforms of courts, Oati Papers, 7, 49-86. Santos, Boaventura de Sousa, Mauricio Garca, Villegas (2001). El caleidoscopio de las justicias en Colombia. Bogot, Ediciones Uniandes, Siglo del Hombre. Santos, Boaventura de Sousa, Joo Carlos Trindade (2003). Conflito e transformao social: uma paisagem das justias em Moambique. Porto, Afrontamento. Vallini, Barbara (1996). Il giudice di pace: per le piccole controversie si puo avere una giustizia piu veloce e meno costosa, available at: www.aduc.it/Avvertenze/Schedearchivi/scheda3.html, April 2001.

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