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ENHANCING JUDICIARY`S ABILITY TO CURB CORRUPTION - A PRACTICAL GUIDE
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2.2 MINIMUM STANDARDS TO MEET THE PRINCIPLES FOR
AN EFFECTIVE JUDICIARY
Minimumstandards are informed by regional and international regulatory frameworks. Some standards
are the output of inter-governmental debates, while others are the result of judicial professionals
who have turned their national experiences into international standards
23
. Development of these
frameworks over the past few years has encouraged states to align their principles with these higher
standards and to encourage their judiciaries to fulfil their responsibilities with the utmost integrity.
The most comprehensive and widely ratified international anti-corruption convention – the United
Nations Convention against Corruption (UNCAC) at art.11 asks member states to take measures
to strengthen integrity and to prevent opportunities for corruption among members of the judiciary,
in accordance with the fundamental principles of their legal system and without prejudice to judicial
independence. Individual references as well as a detailed matrix on the standards below and their
international grounds are provided in Annex 1.
Where international standards were not explicit or comprehensive enough to satisfy the strengthening
of the judicial anti-corruption capacity, proposed standards have been developed as an outcome of
Transparency International’s expertise worldwide.
LAwfulness
The principle of lawfulness requires the judiciary to operate in accordance with the following standards:
1.
The procedural framework in which the courts and prosecutors’ offices operate is provided
for by legal provisions adopted by the legislative body.(A1)
2.
(In countries where there is a written constitution) the fundamental rights and freedoms of
individuals are stipulated by the constitution and elaborated in legal provisions adopted by
the legislative body
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. (A2)
3.
Criminal offences are established by laws adopted by the lawmakers and cannot be altered
by the executive, nor extended to similar facts through extrapolation.(A3)
4.
Criminal sanctions are applied only to criminal offences stipulated by law. (A4)
5.
Criminal offences and guilt are demonstrated only through evidence obtained in accordance
with procedural rules that have been applied in harmony with fundamental rights. (A5)
6.
Judgments and decisions shall be grounded in the law and the legal provisions applicable
should be indicated as such in the decisions
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. (A6)
7.
Judges, prosecutors and court officials shall be consulted when new legislation affecting
the functioning of the judiciary or fundamental rights is developed. (A7)
23. A detailed matrix on the minimum standards and their international grounds can be found in Annex 1.
24. Guidance Note of the Secretary-General, UN Approach to Rule of Law Assistance, April 2008, point B – Framework
for strengthening the rule of law
25. MAGISTRATES ETHICS AND DEONTOLOGY, Council of Europe,
http://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/Ethics/Paper2_en.asp