City of Buenos AiresSocial rights entrenched in ConstitutionIndependent JudiciaryProliferation of social rights cases in last

years (water, education, housing, etc.)Local Supreme court slowly limiting social

rights structural litigationNeed of narrow tailoring of cases –better

framing of the issue, stronger evidence, etc.-empirical evidence (to neutralize state

arguments and judge´s fears)

Challenges for the adequate use of empirical dataLitigants are usually unfamiliar with technical skills

to gather or analyze relevant empirical evidence + high cost of such activity

Contexts of weak institutions present severe institutional obstacles to gather it:Resistance to deliver existing information;Lack of production of relevant information, necessary

to understand fulfillment of the right (ex. Inclusive education; teachers distribution, nutritional map);

Lack of disaggregation –budgets- that impedes adequate comparisons (i.e. in non discrimination cases)

Partial information –difficult to draw conclusions-

Litigating on ATI + Production of informationGather data via access to information

mechanisms –many times require litigation, over 40 cases- (children per school/distribution of subsidies/programs implementation, etc.)

Promote cases to produce relevant information

Adoption of inter disciplinary work (sociologist, economist, pedagogy experts)

Use empirical data to strengthen Litigation and Litigation to produce empirical data.I. Building of the case: increase chances to convince judges –who are reluctant to intervene in public policies, unless there are clear and proved rights violations-II. Implementing the decision: create indicators of progress towards the implementation of structural decisions (litigants and judges can easily “get lost” w/o adequate data-)III. Production of Information. Strategic use of litigation to show deficit in production of info, and compel such production.

I. Case: Lack of sufficient pre primary SchoolsPre primary education is obligatory in the city

of Buenos AiresGovernment has the obligation to provide free

education for children aged 45 days / 5 yearsStructural problem of lack of vacancies for

several years. Lack of vacancies was publicly known, but hard to prove as a structural issue.

Specially affected population living in most disadvantaged areas of the City.

I. Evidence to «build» the case

a. Obtain empirical data through ATI litigation b. Present Budget analysis evidencec. Use General Audit reportsd. Use of poverty indicatorse. File Experts opinions

Evidence: (i) Obtain and use official quantitative informationATI through litigation

Government refused to provide information.After 1 year info was delivered. Official data

proved that: 6.000 children who requested a vacancy were

in waiting lists no existing data of number of children who were

excluded from school but did not require a vacancy Comparatively, most of the lack of vacancies

problem occurred in areas with more Basic Unsatisfied Needs (poverty indicator)

Evidence: (ii) Budget analysis and use of Public Audits ReportsAgainst «lack of resources excuse»:

Comparing funds allocated by legislature with funds effectively spent by the Excecutive proved under spending of 32% of available funds for school infrastructure.

General Audit reports proved under spending of available resources during previous 5 years.

These facts offered as evidence of violation of obligation to use Maximum Available Resources.

Evidence (iii): Experts´ opinionsPedagogy expert Opinion: Relevance of pre

primary education in the students learning process

Disadvantage for students that miss pre primary education vis a vis those who attend it

Decision and agreementAppeals Court found a violation to the right to

education (denial of access to education) and governemnts failure to use Maximum Available Resources.

Local Supreme Court, «suggested» agreement, unconfortable deciding the

case –»interfering with the Administration»Agreement

Government will build 11 new schools in 2 years to create new vacancies (among other obligations)

Produce information on «real number» of children w/o vacancy.

Agreement will subsist until the lack of vacancies = 0

II. Evidence in the implementation phaseStructural litigation shows a deep

problem in implementation phase:Government´s reluctance to implement;Judges lack of infrastructure and technical

capacity for adequate follow up;Litigators lack of resources and technical

capacity;Difficulty to assess degree of compliance in the

absence of adequate indicators;

Need of evidence to monitor agreement implementationHow to monitor the progressive fulfilment of

the long term agreement?:Complex issues of

a. real time Budget allocations; b. public bidding process; c. Construction contracts advances; d. search and finding of available land to build new

schools; e. constant variation in the amount of children in

waiting list, etc. Judge and plaintiff can easily get lost w/o adequate empirical data

Expertise in implementation phaseNeed of technical expertise to create

adequate progress indicators–appointment of an expert team (architect, accountant, lawyer) to analyze progress

Tipically, problem of cost Way forward showed by Supreme Court in

Mendoza case: creation of clear objetives and compel creation of objective indicators which allow follow up (Gov´t must adopt an international system of indicators) + create a web site with access to such indicators

III. Production of informationNeed to promote production of information -

pre condition to enforce social rights-Use litigation to promote such production of

empirical dataObligation to produce information – what

information?Promote the production of necessary

information for the monitoring of the fulfillment of social rights. (ex. Inclusive education, nutritional map)

Case 2. Production of InformationDiagnostic Nutritional Map.Nutritional Map in the City of Buenos Aires.

Law 105 orders the creation of a nutritional map in the city, which should be sent to the Legislature every two months. After 10 years, the State had not created the Nutritional Map.

Judicial decision ordering the creation of the Map.

Difficulties in the implementation proceedings. What should the content of a Nutritional Map be?

The state filed very poor projects of “Maps”, containing scattered, static, insufficient and old information –useless to assess malnutrition-.

Implementation phase of the case

The plaintiff pressed for a complete Map, with the intervention of different areas of government + Dynamic, actualized, complete.

The judge had no technical tools to analyze the parties requirements (which indicators should be included in the Map), and therefore could not tell if the decision was being fulfilled. What would be valid indicator s to have in the map?

Way out: Both parties and the judge appointed a technical body, trustworthy, to decide which indicators should be contained in the Map in order to be called a map. University – Nutrition department.

Some conclusions1. Fundamental role of empirical evidence for litigation:

Prove violation of rights (overcome judicial resistance)Assess success of decisions implementation in structural

cases

2. Role of litigation to foster production of Information (directly or indirectly)

3. Need of interdisciplinary work (analyze statistics, causality/correlatoins, promote adequate indicators, analyze complex technical information, etc.)

4. Need to develop work with objectives/indicatores framework –for judges and litigators-, for a more rational conversation –specially in implementation proceedings-

5. Need to train litigants and judges in gathering and analysis of empirical data