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ENHANCING JUDICIARY`S ABILITY TO CURB CORRUPTION - A PRACTICAL GUIDE

29

Adjudication

The court trial – and any subsequent appeals - of a case consist of a number of steps in which a

judge or court officials, such as clerks or jurors, may exert discretionary power in the decision-making

process. Discretionary power entails corruption risks: decisions may not be made in accordance with

the interests of justice but rather judges or court officials may be bribed or pressured to decide in a

certain way. There are numerous areas in which judges and court officials may exercise discretionary

powers, for example in the admission of evidence, including whether to admit witness testimony;

imposing interim judicial measures

,

deciding on the facts of a case, applying the law to the facts,

deciding whether to convict the accused and deciding whether to use international legal cooperation

and legal mutual assistance mechanisms.

GAPS AND loopholes

•

Limited access of the parties to the case

file

•

Case allocation based on subjective criteria

•

Judges must limit the analysis of the case

to the file submitted by the prosecutor

•

Court hearings are not public

•

Limited access of the judge to evidence or

data held by third parties

•

Sanctions applied are not proportional to

the gravity of the facts, nor are effective

and dissuasive

•

Extensive confiscation rules are not in

place

•

The arbitrary interpretation of rules of

procedure by judges, during the trial of the

corruption case.

Reccomendations to

counter THEM

•

Cases are randomly distributed to court

judges

•

Cases assigned may not be removed

and re-assigned to another judge without

guarantees that such decision is not an

undue interference

•

Criminal procedural code provides the

interested parties with extensive rights to

follow a court case

•

Criminal procedural code provides the

interested parties with rights to submit

intervention requests or amicus-curiae

submissions to cases, as well as the right of

strategic litigants to actively participate in the

case trial

•

Judges have unrestricted access to

all evidence and can order mandatory

disclosure to all public and private entities

•

All the decisions made by the court during

a trial or appeal should be fully reasoned

and justified by the judge or court official.

•

Objective instruments are available to

quantify the impact of a criminal action in

order to establish the appropriate extent of

the punishment

•

Civil compensation may be one of the

sanctions for corruption offences

•

Those who benefit indirectly from the

proceeds of corruption should also be subject

to sanctions

•

Guidelines on unitary interpretation of the law

are provided by the Supreme Court in civil law

systems, in order to ensure the predictability

of the decisions.

•

Sufficient and satisfactory legal guarantees

and physical protection are provided to judges

adjudicating highly sensitive corruption cases