Governance and anti-corruption measures in the Justice Sector

Brusels 19th June 2013

Rosario Ruiz

DEVCO B.1 – Governance, Democracy, Gender and Human Rights

European Commission

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CONCEPT OF CORRUPTION

• Acts or omissions that constitute the use of public authority for the private benefit of judge, court personnel, prosecutors, lawyers …..and results in the improper and unfair delivery of judicial decisions/justice.

• Also applies to informal systems

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Understanding the problem:Manifestations (1)

• Political interference : by threat, intimidation and bribery of judges, but also by manipulation of judicial appointments, salaries and conditions of service.

• Bribery, can occur at any point of interaction in the judicial system: • Courts officials may extort money to delay or accelerating a

case, alter the order in which the case is to be attended or heard by the judge; to alter the legal treatment of files or evidentiary material.

• Judges may accept bribes for accepting or denying appeals, influence other judges or decide a case in a certain way.

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Understanding the problem:Manifestations (2)

• Internal court corruption occurs when court officials.

• Court personnel embezzle public or private property that is in court custody. • In civil, administrative and commercial law cases, the large economic

interests frequently involved in litigation present opportunities for court staff and judges to abuse their administrative or procedural discretion when, e.g calling witnesses, issuing injunctions or allowing procedural delays based on frivolous motions.

• Intra-institutional Justice-sector corruption happens by the interaction between the courts and other justice-sector institution (i.e higher courts, police, prosecutor or prison domains) • The tampering with evidence by prosecutors usually acting in concert with

the police. When the case gets to court, judges are either pressured to stay silent or may collude with prosecutors.

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Prosecutors and Lawyers’ corruption

• Prosecutors: selection of a charge that reflects less than the degree of criminality conduct of the defendant; evidence withheld, arguments in favour of convictions or penalty weak.

Should be independent from excutive but also Judiciary. Limits: •Political interests, media pressure and wishes of sectional groups or individuals/mafia/drug traffickers.•Government funding.

Lawyers: as “Couriers”, “speed up delays” in the Admnistration of Justice.

•Lawyers’ association can operate as cartels, controlling the prices of legal support services. In corrupt environment, success for lawyers is not seen as related merit but to patronage.

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Understanding the problem: causes and consequences

Causes Undue influence by the executive and legislative (weak division of powers) ;Social tolerance of corruption/cultural context; Fears of retribution (in the media, disciplinary action, transfers…death threats); Low salaries/the need to survie; Poor training/lack of reward for ethical behavieur; Inadequacy/lack of monitor/control/oversight mechanisms (inside-outside courts)

Consequences: Distorts justice system role ;Incidence on Human rights/women/other vulnerable groups (indigenous); Particularly the right to justice, to a fair and impartial trial; compromise the economic growth and human development; facilitate corruptions across all public sectors and private; undermine the credibility of public institutions

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ENHANCING INDEPENDENCE. COURT PERSONEL MANAGEMENT. CASE AND COURT MANAGEMENT

• Independence: strenthening/reforming the governance structures- (Judicial Councils); Profesionalisation of career (security of tenure and transparent and fair removal process); Strengthening capacities; salaries/work conditions/ access to law

• Court personel management: selection process, profesional training, remuneration and benefits, codes of conducts; performance evaluations; disciplinary actions

• Case and court management: case assignment procedures; case management systems, judicial chain; impacts of ICTs

• Assessment and evaluation of courts

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COURT TRANSPARENCY AND ACCOUNTABILITY

• Court transparency: Public and media access to court proceedings; Access to judgements and other court-related information; Collection, accessibility and dissemination of legal information; Public awareness-raissing and outreach; Achieving and maintaining public trust.

• Internal Accourntability : declaration of assets; code of conduct; performance evaluations; disciplinary process; financial control; court procedures simplified and easy to understand for the users; Appellate reviews mechanisms, whistleblower policy…

• External accountability: Association of judges/Bars; ombusmen/ Parliament. Media . Civil Society

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Prosecutors • Protecting independency: Prosecutor’s career/work conditions

• Accountability . Proper mechanisms must be in place to ensure that prosecution decisions are transparent (i.e examinable) to an appropriate extent and in appropriate ways.

• Balanced against the privacy of individuals and the need for confidentiality about methods of investigation .

• Important safeguards : • appropriate oversight of the conduct of prosecutions, statutorily based• regular reporting by the prosecution on the exercise of its function• publicly accessible prosecution guidelines to direct and assist decision makers during the

conduct or prosecution• Codes of conduct• Performance measures that target conduct and not merely results• Conduct of judicial proceedings in public (with limited exceptions, for example concerning

children) and the publication of reasons for decisions.

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Lawyers• Support to lawyers’ associations:

• Statute (by law)

• Regulatory mechanism of admission/periodic renewal of practice certificates

• Continuing legal education (as condition for renewal of practice licences)

• Code of conduct for legal practitioners and monitoring mechanisms.

• Disciplinary procedure

• Specific support to women’s lawyers associations