Corruption In The Judiciary: International Experiences

1. Corruption In The Judiciary: International Experiences Jan Borgen Secretary General Transparency International Norway

2. OUTLINE What is corruption in the judiciary? Anti-corruption conventions Bangalore Principles

3. What is corruption in the judiciary? Misuse of entrusted power for private gain Judicial corruption: acts or omissions that constitute use of public authority for private benefit of court personnel Results in unfair delivery of judicial decisions Bribery, extortions, intimidation, influence peddling, abuse of process and court decisions for private gain.

4. Why does corruption matter? A barrier to economic development Violates human rights Distorts political institutions Undermines judiciary and law enforcement Undermines representative democracy A tool of organised crime

5. A cross-border problem Bribe payments made across borders Proceeds of c. are concealed by laundering funds across borders Deposits in foreigns banks; funds transferred to shell companies in tax havens Individuals escape law enforcement Thus c. must be addressed at intl level: prevention, detection and prosecution But hindrances in investigation and prosecution Witnesses, evidence, suspects abroad

6. Effects and forms Distorts role of the judge: to protect civil liberties and citizen�s rights; to ensure fair trial by competent and impartial court Permits public officials and spec. interest groups to do illicit acts and go unpunished Two most pervasive forms: Illicit payment (bribes) Improper influence

7. Causes and manifestation of corruption in the judiciary Undue influence by the executive and legislative branches Social tolerance of corruption Fear of retribution Low judicial and court staff salaries Poor training Collusion among judges

8. Remedies to c. in the judiciary Enhancing independence of Judiciary Introducing accountability systems Declaration of assets Enforce codes of conduct (see Bangalore Principles) Professionalising judicial career Increase salaries Enhance legal competence

9. Remedies to c. in the judiciary (2) Increasing transparency Make judicial decisions available to public Increase accountability of court admin. Process Adhering to international standards (conventions)

10. Anti-corruption conventions Emerging consensus that identifying and fighting corruption needs to be addressed internationally Council of Europe Convention + UN Convention Cover standards and requirements in the prevention, detection, investigation and sanctioning of acts of corruption

11. Anti-corruption conventions (2) Mandatory and optional provisions Optional provisions are good practice Implemented by legislation, regulations, policies and practices Generate peer (gvt-to-gvt) and public pressure on governments to comply with standards and requirements Tools for citizens to hold officials to account Preventive and punitive measures

12. Punitive measures Bribery of public sector official of foreign official of private decision-makers (E mandatory; UN optional) Illicit enrichment by public offical (UN optional) Abuse of functions (UN optional) Trading in influence (E and UN optional)

13. Challenges in bringing conventions into life Signature Ratification Translation into law and practice Establishment of effective international monitoring mechanisms

14. Promoting ratification Research the process for ratification/accession Determine the stage your Govt has reached in that process obstacles to ratification/accession entry points for lawyers� advocacy

15. Promoting implementation Determine what intl standards are relevant in interpreting the convention provisions you are interested in Research existing legislation, policies etc and their consitency with convention requirements Develop proposals for reform

16. GRECO review of E. convention www.greco.coe.int/ 39 countries Peer review w/ evaluation teams Questionnaire and other inputs In-country visits Civil society participation Evaluation and compliance reports, w/ gvt. agreement

17. Bangalore principles Bangalore Principles of Judicial Conduct, 2002 http://www.unodc.org/pdf/crime/corruption/judicial_group//Bangalore_principles.pdf Standards for ethical conduct of judges Provide judiciary with framework for regulating judicial conduct

18. Independence A judge shall exercise the judicial function independently on the basis of the judge's assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason A judge shall be independent in relation to society in general and in relation to the particular parties to a dispute which the judge has to adjudicate.

19. Impartiality A judge shall perform his or her judicial duties without favour, bias or prejudice A judge shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary.

20. Impropriety A judge shall, in his or her personal relations with individual members of the legal profession who practise regularly in the judge's court, avoid situations which might reasonably give rise to the suspicion or appearance of favouritism or partiality A judge shall not participate in the determination of a case in which any member of the judge's family represents a litigant or is associated in any manner with the case

21. A judge shall not allow the judge's family, social or other relationships improperly to influence the judge's judicial conduct and judgment as a judge A judge shall inform himself or herself about the judge's personal and fiduciary financial interests and shall make reasonable efforts to be informed about the financial interests of members of the judge's family A judge shall not use or lend the prestige of the judicial office to advance the private interests of the judge, a member of the judge's family or of anyone else, nor shall a judge convey or permit others to convey the impression that anyone is in a special position improperly to influence the judge in the performance of judicial duties.

22. A judge and members of the judge's family, shall neither ask for, nor accept, any gift, bequest, loan or favour in relation to anything done or to be done or omitted to be done by the judge in connection with the performance of judicial duties. Subject to law and to any legal requirements of public disclosure, a judge may receive a token gift, award or benefit as appropriate to the occasion on which it is made provided that such gift, award or benefit might not reasonably be perceived as intended to influence the judge in the performance of judicial duties or otherwise give rise to an appearance of partiality.

23. For more information Contact Jan Borgen, Transparency International Norway jborgen2@online.no Mobile: +47-90505089