The Judges' Newsletter on International Child Protection
vol. XV / autumn 2009 - Special Focus, Theme 2, R. Pérez Manrique

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THE HAGUE NETWORK AND IBERRED IN LATIN AMERICA

The Honourable Judge Ricardo PÉREZ MANRIQUE
President of the Second Session of the Court of Appeal of Family Affairs of Uruguay, Montevideo, Uruguay

Since 2004 an Ibero American network for judicial co-operation in civil and criminal matters, known under Article 1 of its Rules as Iber Red, has operated in the area comprising Spain and Portugal and the countries of Latin America.

Background

Iber Red was born of the observation that international judicial co-operation is essential among public prosecutors and courts, in criminal matters, in order to fight organised crime and other forms of cross-border crime, but also to regulate the legal exchanges and family relations in civil matters. The network specifically refers to the need to achieve full international effectiveness of the judicial rulings adopted in family matters in each member country: rights of custody, rights of access, abduction and others.

It is considered in particular that, even though international judicial co-operation requires normative features, adjustments and proposals at that level, it mainly requires the possibility of relying on the personal involvement and commitment of all the parties intervening in the proceedings.

This is why the challenge needs to be met: establishing a co-operation mechanism set up with all actors in the system (Central Authorities, judges and public prosecutors or attorneys), in order to achieve efficiency.

General provisions

What is Iber Red?

The Ministries of Justice, representatives of the Public Prosecutor's Offices or State prosecuting offices and the courts of the member countries of the Ibero American Community of Nations created the Ibero American network for judicial co-operation in civil and criminal matters - Iber Red.

The Ibero American Community consists of the countries which participate in the Ibero American Summits of Heads of State and Heads of Government, which share common cultural roots and the two mother tongues, Spanish and Portuguese, spoken by all their members.

Objectives

To maximise judicial co-operation in civil and criminal matters between the countries comprising the Ibero American Community. Gradually to set up and to keep up-to-date an information system on the different legal systems in place in the Community.

Application

The Network will be used specifically to

  • Resolve difficulties in processing letters rogatory.
  • Request information on documentation and formalities, in advance of letters rogatory being issued.
  • Coordinate special procedures or proceedings in advance, depending on the available technological means.
  • Facilitate ongoing international investigations and coordinate joint actions.

Its governing principles

  • Complementarity, laid down in Article3.2 of the IberRed Regulation:[1] the objective of maximising co-operation is complementary and ancillary and does not exclude work of the same kind by the executive authorities and Central Authorities of the States in question.
  • Firm institutional commitment by all the States and by all the various participants, each acting within its statutory powers.
  • An amicable invitation to all operators to coordinate and act to maximise international judicial co-operation.

This takes place in a highly flexible framework, with no rigid rules which qualify or hinder relations between the various members.

Who make up the network?

The members of Iber Red are:

The contact points designated by the Ministries of Justice, by the Public Prosecutor's Offices or prosecuting offices and by the courts.

There are at least three members per country.

In addition to these are the bodies who act as Central Authorities under the various international conventions signed by the States or any other authority whose membership is considered beneficial for the network. The intention is that any operator who acts as a contact should be a member of the network. It is divided into two sections: criminal and civil.

Operation

Activities of the points of contact complying expressly with the principle of complementarity: 1) Ensuring the smooth progress of any procedures having a cross-border impact and streamlining requests for co-operation within the Community; 2) Effective practical implementation of the co-operation conventions.

To which end the points of contact shall: be available to the points of contact and authorities of the other countries and also to the courts of each State.

Some functions of the contacts points

a) to provide all the information required for good judicial co-operation between States to the other contact points, to the authorities referred to in Article 4(1)(b) and 4(1)(c) and to the local courts in their States, to enable them effectively to submit a request for judicial co-operation;

b) to identify and, when so requested by another contact point, supply information on the court or prosecuting or administrative authority responsible for acting on requests for judicial co-operation;

c) to seek solutions to any difficulties which may arise in connection with a request for judicial co-operation;

d) to facilitate coordination of examination of requests for judicial co-operation in the States in question, in particular when several requests from the courts of those States have to be enforced in a different State;

In order to perform their functions the points of contact must be clearly identified and must be given the appropriate training. The Network shall have a Secretary General, for the purposes of coordination and of preparing meetings. Iber Red has issued its Handbook of Good Practice

Relations with other networks and organisations responsible for International Judicial Co-operation

Article 13 of the IberRed Regulation is set out since it is regarded as extremely important.

"1. In order to meet its objectives, Iber-Red aims to maintain contacts and to share experiences with other judicial co-operation networks and international bodies which promote international judicial co-operation.

2. To the extent established in the national legislation of each point of contact, the points of contact may perform operational roles in conjunction with points of contact or representatives of other bodies."[2]

In order to meet its objectives, Iber Red seeks to maintain contact and share experiences with other networks and international bodies which promote international judicial co-operation. International judicial co-operation must deploy all the mechanisms available in order to be effective and make them available to operators.

It then refers to the possibility that the Iber Red points of contact, in accordance with each country's legal system, may enter into co-operation or operational agreements with contact points or members of other bodies.

I have been designated in Uruguay as a member of the International Hague Network of Judges and in turn as a link with Iber Red.

That is to say that when judicial co-operation is requested via Iber Red in relation to child abduction or protection, the contact point in civil matters in my country liaises with me as the Hague Network Judge acting as the link or coordinator between the two co-operation networks.

I also act in turn as the contact point in children's and family matters in MERCOSUR, which allows there to be proper coordination and use of the resources available in the various networks.

Similarities and differences between IberRed and the Hague Network of Judges

Members: judges in the Hague Network, Central Authorities, Public Prosecutor's Offices or State Attorney's Offices and courts in Iber Red.

Subject-matter: child abduction and protection in the Hague Network, civil and also criminal matters in Iber Red.

Geographical scope: the Hague Network includes all the signatory countries to the 1980 Convention, irrespective of their geographical location; Iber Red only includes the countries belonging to the Ibero American area.

Organisation: there is no central organisation in the Hague Network whereas there is one in the form of the Secretary General in Iber Red.

Direct judicial communications: this is the focal point in the Hague Network, hence the importance of the Network judges, as practising judges, there is no specific provision in Iber Red.

Notwithstanding this, as a result of the principle of flexibility Iber Red is able to be an adequate framework for developing direct judicial communications.

Conclusion

Experience has shown that it is necessary for judicial networks to operate in coordination and to supplement one another. In order to achieve this target, they need to know all the legal actors, within each country, but also at the international level, and be easy for judges to access. Coordination and integration need to be carried out on the basis of the principle of each network's specialisation. Within the Ibero-American area, judges specialising in Hague child protection ought to be designated as contact points and links by Iber Red on the basis of their specialisation and in accordance with Article 13 of the Iber Red Rules.

[1] Available in Spanish and Portuguese on the IberRed Website : < http://www.iberred.org/ >

[2] Unofficial translation by the Permanent Bureau of the Hague Conference