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