The Judiciary and Corruption

1
The Judiciary and Corruption
Workshop WS 2.4 Judicial Integrity 11th
IACC 25-28 May 2003 Seoul (South Korea)

• Manuel LEZERTUA
• Executive Secretary of GRECO
• Head of Economic Crime Division
• Council of Europe

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Principles at the heart of the Council of Europe

• Article 6 ECHR everyone is entitled to a fair
  and public hearing within a reasonable time by an
  independent and impartial tribunal established by
  law.
• The Rule of Law
• Judges carry out their functions without undue
  influence
• The judicial system must be structured to
  eliminate/reduce undue influence

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The Council of Europe and the EFFICIENCY of the
judiciary

• Recommendation No R (81) 7 on measures
  facilitating access to justice
• Recommendation No R (84) 5 on the principles of
  civil procedures designed to improve the
  functioning of justice
• Recommendation No R (86) 12 concerning measures
  to prevent and reduce the excessive workload in
  the courts
• Recommendation No R (87) 18 concerning the
  simplification of criminal justice
• Recommendation No R (95) 5 concerning the
  introduction and improvement of the functioning
  of appeal systems and procedures in civil and
  commercial cases and
• Recommendation No R (95) 12 on the management of
  criminal justice.

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The Council of Europe and the INDEPENDENCE of
judges

• Recommendation R (94) 12 on the independence
  efficiency and the role of judges
• independence of judges provided in the
  Constitution
• no interference from the legislative and
  executive powers
• objective selection of judges
• appointments by an independent body
• guaranteed remuneration
• proper working conditions of judges
• security and safety of judges
• training (initial and in-service)
• impartial distribution of cases (random
  distribution)
• ethical guidelines (independence impartiality
  conflicts of interest)

5
European Charter on the statute for judges

• Judges are entitled to remuneration the level
  of which is fixed so as to shield them from
  pressures aimed at influencing their decision

6
Council of Europe texts on corruption relevant
for the judiciary

• Resolution No (97) 24 on the Twenty Guiding
  Principles for the Fight against Corruption
• Principle 3 to ensure that those in charge of
  adjudication of corruption offences enjoy
  independence and autonomy appropriate to their
  functions are free from improper influence 
• Principle 6 to limit from investigation
  prosecution or adjudication of corruption
  offences to the degree necessary in a democratic
  society

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• Criminal Law Convention on Corruption (ETS 173)
• bribery (active and passive) of judges and
  prosecutors in national courts as well as in
  foreign and international courts.
• Bribery (active and passive) of jurors and
  arbitrators NEW!! ADDITIONAL PROTOCOL TO ETS
  173

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GRECO Group of States against Corruption

• International monitoring mechanism
• Established in 1999 by the Council of Europe
• 35 members
• Open to member and non-member States of the
  Council of Europe
• TASK
• - Monitoring the observance of Council of
  Europes international legal instruments on
  corruption

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Recommendations addressed by GRECO concerning
the independence of the judiciary

• Principle 3 (independence of the judiciary)
• Raising the awareness of corruption and its
  dangers to public officials including judges and
  prosecutors
• Improving transparency of public authorities
  including courts
• Introducing legislation to provide for the
  independence of judges
• Speeding up court proceedings
• Institutionalising training of prosecutors and
  judges
• Developing ethical guidelines for
  judges/prosecutors
• Improving the professional level of judges
• Establishing objective criteria for selection and
  recruitment of judges
• Establishing an independent body (from the
  executive powers) for appointment of judges
• Introducing a process of vetting candidates
  before they are appointed judges

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• Principle 3 (independence of the judiciary)
  continued
• Establishing an independent body to manage the
  Courts (not the judicial work)
• Establishing an independent body to monitor
  corruption in the judiciary
• Establishing disciplinary proceedings for judges
• Rendering dismissals of judges public
• Guaranteeing judges a legal status (immovability
  etc)
• Guaranteeing judges social protection good
  working conditions and a fair remuneration
• Judges to declare their assets at regular
  intervals to an appropriate body
• Limiting the powers of the Ministry of Justice
  over the prosecution system
• Ensuring the independence of the prosecution
  system
• Making sure that prosecutors decision to
  prosecute in a (corruption) case is based on
  established criteria

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• Principle 6 (to limit immunity from
  investigation/prosecution/adjudication)
• Reducing the categories of officials (among them
  judges and prosecutors) enjoying immunities
• Making sure that the lifting of judges
  immunities are free from political consideration
• - Establishing guidelines for the lifting of
  immunities