C Explanatory
report by Mr Sasi, rapporteur
1 Introduction
1. At the meeting held on 3 March 2014, the Committee
on Human Rights and Legal Affairs appointed me as rapporteur on
the issue of “Judicial corruption: urgent need to implement the
Assembly’s proposals”. At the origin of this initiative was a motion
Note of 12 November 2013 which
stressed the need to follow up the Assembly’s
Resolution 1703 (2010) on judicial corruption and to highlight the most flagrant
cases of judicial corruption in the strive to remind Council of
Europe member States of their commitment to ensure the independence
and efficiency of their judiciary and restore trust in it.
2. In my introductory memorandum of March 2014, I proposed to
look into the various aspects linked to judicial corruption and
consider its implications for upholding the rule of law and individuals’
enjoyment of their human rights. I intended to consider the various
forms of judicial corruption, its possible presence in different stages
of the judicial proceedings, as well as the actors involved. My
analysis would also extend to exploring the link between judicial
and other forms of corruption, for instance within the legislative
or the executive bodies. On 7 April 2014, the committee considered
my introductory memorandum and decided to hold a hearing at its
meeting in Helsinki in May 2014.
3. A comparative study on the matter of “Judicial corruption
in Europe: Extent and Impact” was prepared by the European Human
Rights Association (EHRA),
Note which stands as background for the
conclusions drawn in the present document and the recommendations
proposed. The comparative study (the research report
Note together with the addendum
Note containing data related to the situation
in member States) was presented to the committee at the hearing
held in Helsinki, in the presence of two experts: Ms Monica Macovei
(MEP, former Minister of Justice of Romania); and Sir Nicolas Bratza
(former President of the European Court of Human Rights). The two
experts gave their input based on their extensive experience in
the judicial field and exchanged views with the members of the committee
on the best approach to eradicate judicial corruption at national
level. In this connection, Sir Nicolas Bratza also presented the
main findings of the comparative study on behalf of EHRA.
Note As
a conclusion to the discussion which ensued, I undertook to proceed
with identifying the countries most affected by judicial corruption,
based on the elements identified in the comparative study and the
findings available from the relevant international institutional
and non-governmental bodies.
2 Defining
the notion of (judicial) corruption
4. Notwithstanding that there exists today a multitude
of international instruments relating to the prevention and eradication
of corruption, there is no generally accepted precise definition
of this phenomenon. This suggests that there is a need for a flexible
approach to be taken in framing corruption, especially given that
its forms and manifestations are constantly evolving. The term “corruption”
encompasses a wide range of acts and omissions and does not limit
itself to bribery. The generally accepted description of the concept
is “the abuse of entrusted power for private gain”,
Note which allows for
inclusion of the numerous practices related to corruption.
5. Criminalisation of corruption is one of the main pillars in
the fight against these practices, and the Council of Europe has
elaborated a specific instrument in this regard (the
Criminal
Convention on Corruption, ETS No. 173), setting out standards for the elements
to be considered by member States when developing their relevant legal
framework. Nevertheless, adequate provisions ensuring the legal
framework for fighting corruption are only a prerequisite and remain
ineffective without proper implementation. Various international
bodies revealed scant implementation and generally few reported
cases of convictions (for instance, the Organisation for Economic
Co-operation and Development (OECD) in its reports concerning the
implementation of its Anti-Bribery Convention). I will elaborate
on this particular aspect below.
6. In a judicial system context, corruption is conduct that undermines
the effectiveness and confidence necessary to carry out the public
purpose. It has been defined as “acts or omissions that constitute
the use of public authority for the private benefit of court personnel
and result in an improper and unfair delivery of judicial decisions.
Such acts and omissions include bribery, extortion, intimidation,
influence peddling and the abuse of court procedures for personal
gain”.
Note
7. A transparent and accountable judicial system is an essential
pillar of the rule of law in a democratic State and the judiciary
ought to be upstanding in order to act impartially, as a guarantee
of its independence.
3 The international
instruments related to corruption
8. The main instruments of the Council of Europe with
regard to corruption are:
9. The Council of Europe has issued numerous other reference
texts concerning corruption prevention in respect of judges, which
form a solid framework of guidelines to be followed by member States:
- Resolution
(97) 24 on the twenty guiding principles for the fight against
corruption (see, in particular, guiding principles Nos. 1 and 3);
- Resolution
1703 (2010) and Recommendation
1896 (2010) of the Parliamentary Assembly on judicial corruption,
as well as the explanatory report thereto (Doc. 12058), which I had prepared on behalf of the committee;
- Recommendation
Rec No. R (2000) 10 on codes of conduct for public officials, including
a Model code of conduct for public officials (in appendix), and
the accompanying explanatory
memorandum;
- Recommendation
Rec(2010)12 of the Committee of Ministers on judges: independence,
efficiency and responsibilities and its explanatory
memorandum;
- Magna
Carta of Judges (Consultative Council of European Judges (CCJE), 2010);
- Report
on European Standards as regards the Independence of the Judicial
System: Part I – the Independence of Judges (2010), European Commission for Democracy through Law (Venice Commission);
- Venice Commission Report
on Judicial Appointments (2007);
- Opinion
No. 1 of the CCJE on standards concerning the independence
of the judiciary and the irremovability of judges (2001);
- Opinion
No. 3 of the CCJE on the principles and rules governing judges’
professional conduct, in particular ethics, incompatible behaviour
and impartiality (2002);
- Opinion
No. 10 of the CCJE on the Council for the Judiciary at the
service of society (2007);
- European
Charter on the Statute for Judges (1998).
10. Lastly, other international instruments and reports are relevant
and have been considered in the preparation of this document:
- the United
Nations Convention against Corruption (UNCAC, 2003, 2349 U.N.T.S. 41) (and in particular its
Article 11);
- the International
Code for Public Officials, to be read in conjunction with Articles 8(1)-(3) and
2 of the UNCAC;
- the Legislative
Guide for the Implementation of the United Nations Convention against
Corruption (New York, 2006) (see in particular paragraphs 98-108);
- the Technical
Guide to the United Nations Convention against Corruption (New York, 2009) (see in particular pages 18-27 and
46-53);
- the Bangalore
Principles of Judicial Conduct (2002), as well as Resolution
2006/23 on “Strengthening Basic Principles of Judicial Conduct”
of the United Nations Economic and Social Council (ECOSOC), E/RES/2006/23
(27 July 2006), calling on States to take into consideration these
principles when adopting or reviewing rules pertaining to the professional
and ethical conduct of members of the judiciary;
- the Draft implementation guidelines for the Bangalore
Principles of Judicial Conduct, contained in the report of the 6th meeting of the Judicial Group on Strengthening
Judicial Integrity (2010);
- the United Nations Office on Drugs and Crime, Commentary
on the Bangalore Principles of Judicial Conduct (2007);
- the OECD Convention
on Combating Bribery of Foreign Public Officials in International
Business Transactions (OECD Anti-Bribery Convention, 1997);
- Transparency International’s 2007
Global Corruption Report: Corruption in Judicial Systems.
4 Background – the
work of the Council of Europe concerning the matter of judicial
corruptionNote
4.1 The Parliamentary
Assembly
11. The Parliamentary Assembly has issued a series of
recommendations and resolutions on the fight against corruption,
including within the judiciary. Most notably, as already mentioned
above, on 27 January 2010, the Assembly adopted
Resolution 1703 and
Recommendation
1896 (2010) on judicial corruption, based on a report which I had
prepared for the Committee on Legal Affairs and Human Rights
Note and in which I stressed the need
to ensure the highest levels of professionalism and integrity and
to restore public confidence in the judicial system. The Assembly
called on member States to devise specific mechanisms to ensure
the accountability (criminal accountability included) of judges,
without impairing their independence and impartiality.
12. The Committee of Ministers subsequently adopted
Recommendation
CM/Rec(2010)12 on judges: independence, efficiency and responsibilities,
which covers,
inter alia, both internal and external independence,
the status of judges and rules setting out judges’ responsibilities.
In its
reply
to Recommendation 1896 (2010), the Committee of Ministers furthermore stressed that
judicial corruption engendered impunity and undermined the rule
of law, a prerequisite for any pluralist democracy.
13. In its
Resolution
1943 (2013) and
Recommendation
2019 (2013) on corruption as a threat to the rule of law, the Assembly
urged national parliaments to contribute to the implementation of
the recommendations made by the Group of States against Corruption
(GRECO), in particular those emanating from its fourth evaluation
round which has a focus on corruption within the judiciary. Appended
to the explanatory memorandum
Note is
Transparency International’s
2012
Corruption Perceptions Index (CPI), illustrating the degrees to which corruption
is perceived to exist in Council of Europe member States in the
context of the global ranking. In its
reply
to Recommendation 2019 (2013), the Committee of Ministers endorsed, in particular, the
emphasis in the Assembly’s recommendation on the need to guarantee
the independence of the judiciary and to provide for appropriate
incriminations of corruption offences. Various cases of corruption
were highlighted as examples in the rapporteur’s explanatory memorandum,
namely relating to Azerbaijan, Bulgaria, the Russian Federation
and Ukraine. The resolution provides clear indications as to what
measures member States should take in order to eradicate corruption
in general, and makes specific recommendations with regard to the
judiciary, underscoring, most notably, the need to guarantee its
independence (with regard to career-related as well as disciplinary
procedures). It also stresses the importance of having regulating
bodies which are free from influence and interference, as well as
the role of the media and civil society in the evolution of a zero
tolerance attitude towards bribe-taking and corruption and in tracking
and denouncing such practices.
14. The explanatory memoranda to the above-mentioned texts suggest
that judicial systems should adhere to high standards regarding
independence, impartiality, integrity, accountability and transparency,
in order to retain their responsiveness and reduce their vulnerability
to corruption. The risks identified to the integrity of the judicial
system and the corresponding recommendations made pertain to the
status of judges (in relation to recruitment, promotion and dismissal,
term of office, remuneration and appraisal); guarantees of independence
from undue political interference (while ensuring accountability);
transparency in case management and public access to information;
the elaboration and monitored implementation of strict professional
and ethical standards for judges; appropriate training and rules
pertaining to conflicts of interest; effective investigation and
prosecution and, ultimately, appropriate administrative as well
as criminal punishment for acts of corruption.
15. Proper implementation of this comprehensive set of guidelines
drawn up by the Assembly could contribute significantly to the fight
against judicial corruption and improve both preventive and repressive
action within the member States. Against this background, it is
all the more disconcerting that the follow-up given to these texts
by member States has been mediocre at best, as transpires from the
analysis in section 5 below.
16. The Assembly members have on numerous occasions taken a stand
in debating the issue of judicial corruption. The
motion at the origin of my rapporteur mandate underlined that
“corruption in the judiciary undermines the trust in the judicial
system, denies access to justice, infringes the right to a fair
trial and favours impunity”. It also deplored that no guidelines
on codes of conduct and ethics for judges had been adopted by the
Committee of Ministers, despite the specific recommendation made
to this effect in
Recommendation
1896 (2010), and that some member States had yet to sign and/or
ratify key anti-corruption conventions.
17. Along the same lines, our colleague Ms Reps, then the Assembly’s
rapporteur on “Corruption as a Threat to the Rule of Law”, aptly
qualified corruption as a “scourge” which must be eradicated, outlining,
in a
statement, the effects of corruption – including in the judicial
sector – on the rule of law and the human rights protection system.
4.2 The Group of States
against Corruption
18. In the preparation of my report, I have been able
to draw extensively from the results of the ongoing monitoring work
undertaken by the Group of States against Corruption (GRECO) in
the course of its Fourth Evaluation Round, which focuses on corruption
prevention in respect of members of parliament, judges and prosecutors
in the member States. GRECO has to date published 23 evaluation
reports,
NoteNote with three more reports
Note still being confidential
at the time of writing, as well as seven compliance reports.
Note
19. Throughout these reports, GRECO has highlighted various issues
meriting member States’ attention, mainly on the aspect of the legal
framework relevant to the prevention of corruption in the judiciary.
All countries monitored received recommendations on consolidating
specific aspects and/or improving the relevant legislation or practice
in order to reflect the standards imposed by international mechanisms
in this regard. Some of the press releases issued by GRECO
Note following the
publication of its reports unambiguously set out the matters requiring
the attention of the member State concerned.
4.3 The Commissioner
for Human Rights
20. Both the current Commissioner for Human Rights and
his predecessor have often addressed the issue of judicial corruption
throughout their monitoring work, and their public statements in
this regard have been referred to in various subsequent documents
of other Council of Europe bodies. In this regard, countries like Albania,
Armenia, Georgia, the Republic of Moldova, the Russian Federation,
Turkey and Ukraine have been mentioned
Note by the Commissioner
in his efforts to bring attention to the matter of judicial corruption
and the independence of judiciary or the proper administration of
justice. He has voiced direct concern with regard to the existence
of corruption in respect of Albania, while issuing several statements
on the matter of the independence of the judiciary with regard to
Georgia (in 2011 and 2014
Note) and Ukraine
(in 2012 and 2014
Note).
4.4 The Venice Commission
21. The Venice Commission has been actively involved
in assisting member States in drafting legislation related to the
prevention of corruption and, more generally, the independence of
the judiciary. It has also issued country-specific opinions on draft
legislation pertaining to the organisation of the judicial system
submitted to it for review.
Note Armenia, Bosnia
and Herzegovina, Georgia, the Republic of Moldova, Montenegro, Serbia
and Ukraine are among the most recent countries in respect of which
the Venice Commission has adopted relevant opinions.
Note
4.5 The European Commission
for the Efficiency of Justice
22. Valuable data relevant to assessing the administration
of justice in the member States of the Council of Europe is provided
in the reports published by the European Commission for the Efficiency
of Justice (CEPEJ). These reports also contain useful data for evaluating
indicators relevant to the assessment of corruption risks (especially
concerning judges’ salaries, workload, case distribution, etc.)
The CEPEJ’s most recent
report (of over 500 pages) on the Evaluation of European Judicial
Systems, containing data from 2012, was published in October 2014.
Note It contains specific sections dedicated
to judges and to the status and careers of judges and prosecutors,
respectively, and valuable inspiration can be drawn from it as to
how to preserve or reinforce the independence and impartiality of
judges, to avoid corruption and to give more social recognition
to the professions.
4.6 The Secretary General
23. In the introductory memorandum that I presented to
the committee on 7 April 2014, I welcomed the fact that Thorbjørn
Jagland, the Council of Europe’s Secretary General, had made the
prevention and eradication of corruption one of the Organisation’s
priority activities for the 2014-2015 biennium. In keeping with
this agenda, he published, in April 2014, a report on the “State
of Democracy, Human Rights and the Rule of Law in Europe” (
document
SG(2014)1), a whole chapter of which is devoted to corruption.
Similarly, the second edition of his report (
document
SG(2015)1E), published in April 2015, identifies the lack of judicial independence
in many countries as one of the biggest challenges to democratic
security. I cannot but congratulate the Secretary General for his
concern over the existence of corruption and for noting expressly that
“[a] constant flow of corruption allegations and scandals has eroded
institutional credibility in a number of member States”.
Note At the same time, I am somewhat
disappointed that both of his reports failed to identify those Council
of Europe member States in which (judicial) corruption exists. I
hope that the Secretary General will in the future take an even
firmer stance on the matter and indicate clearly in which States
problems have been identified.
4.7 Conclusions
24. Concerted efforts by all relevant Council of Europe
bodies in the fight against corruption are to be welcomed, such
as in the case of Albania, with respect to which both GRECO and
the Commissioner for Human Rights have issued unequivocal statements
and clear recommendations on the occasion of the publication of
their respective reports on the country. Such a firm approach is
likely to have a stronger impact and to consolidate the Council’s
position in ensuring its commitment to highlighting risks of corruption.
5 The main findings
of the comparative study “Judicial corruption in Europe – Extent
and Impact”
5.1 Purpose of the
study
25. As mentioned above, I had entrusted the European
Human Rights Association (EHRA) with preparing a comparative study
on alleged judicial corruption in Council of Europe member States,
aimed at providing a general overview of the extent and impact of
judicial corruption. The comparative research focused on presenting
the legal framework for preventing and combating corruption, selected
aspects related to its implementation, as well as the perception
of corruption and certain challenges and recommendations.
26. The impact of judicial corruption was considered in light
of the principle of independence and impartiality of national courts,
and examined in terms of its direct effect on the fair trial guarantees
enshrined in the
European
Convention on Human Rights (ETS No. 5, “the Convention”). In support of these arguments,
the study looked into the relevant case law of the European Court
of Human Rights (“the Court”), as well as the execution of relevant
judgments of the Court.
27. The study was intended to serve as a basis upon which the
committee would engage in further debate, while providing, at the
same time, the requisite background for identifying those countries
where there are major problems to resolve in terms of tackling judicial
corruption at national level.
5.2 Scope
28. The research focused on three main aspects, namely
the general concept of corruption and the international legal framework
covering the issue, the comparative research, as well as the impact
of corruption on the human rights protection mechanism.
29. The comparative research took into consideration three elements:
- the national legal framework
of the 47 member States;
- its implementation;
- the perception of judicial corruption, including the position
of the media and civil society.
30. The study also analysed the data collected in light of the
findings and recommendations issued by relevant international institutional
bodies (such as the Council of Europe – more specifically GRECO,
the Commissioner for Human Rights, the Committee of Experts on the
Evaluation of Anti-Money Laundering Measures and the Financing of
Terrorism (MONEYVAL) and the Venice Commission – as well as the
OECD and the European Union), non-governmental organisations (most
notably Transparency International and Freedom House) and national
governments (for example pertinent Human Rights Reports of the U.S. Department
of State).
31. The study focused on corruption in the judiciary, referring
strictly to judges. It scrutinised the various facets of corruption
(bribery, facilitation, influence, peddling), with a focus on case-related
corruption, while also considering career-related corruption.
32. With regard to the first element, the legal framework related
to corruption considered for the purpose of the study included national
provisions expressly regulating the prevention and eradication of
corruption (criminal liability, disciplinary measures), as well
as adjacent legal provisions which are of relevance for the prevention
of corruption (such as regulations on assignment of cases, recruitment,
career advancement, declaration of assets, etc.). Following a brief
overview of the main common and differing features of the legal frameworks
in the countries examined, some particularities of each system were
mentioned, meriting further consideration, as highlighted in various
studies and assessments by specialised bodies (international organisations
and civil society). Lastly, the study identified certain common
challenges.
33. In relation to the second element, namely the implementation,
the assessment focused on information available on investigated/prosecuted/convicted
cases of corruption (typology, statistics, visibility etc.).
34. The third element, the perception of corruption, falling outside
the strict scope of a legal research, was considered in light of
the findings of a number of surveys conducted by specialised bodies.
35. Following the line of the comparative study, I am of the opinion
that an adequate assessment of the corruption status of each member
State could be best done by considering all these three elements
(legal framework, implementation, perception) in an interrelated
manner, in order to gain a realistic perspective on the situation
of each member State concerned.
36. The following sections highlight, along with briefly presenting
the main findings of the comparative study, only the issues considered
to be problematic with respect to certain countries, as revealed
by the many reports published by international organisations or
NGOs working in the field of anti-corruption. A detailed overview
on each topic, as well as the relevant data and sources, can be
found by consulting the EHRA’s
report and its
addendum, available on the
website of the Committee on Legal Affairs and Human Rights.
5.2.1 The legal framework
on combating corruption
37. I will note at the outset that most countries seem
to have complied with the main international standards concerning
the criminalisation of corruption.
38. With regard to the issues deserving particular attention,
it is to be noted that, in some countries, there are no provisions
on imposing confiscation of equivalent value (for instance in Andorra),
or the pertinent provisions are found to be rarely applied (like
in the case of Austria).
39. Monitoring bodies (GRECO) have moreover emphasised the need
to avoid full discretion of a single political entity in the context
of deciding whether or not the immunity of a member of the judiciary
should be lifted in a given case.
40. As regards the protection of whistle-blowers who expose corrupt
practices within the judiciary or elsewhere, enhanced measures have
been recommended in several instances (notably with respect to Albania,
Germany, the Republic of Moldova and Sweden). On other occasions,
the existing legal frameworks were deemed limited, weak or ineffective
(Albania, Armenia, Estonia, Georgia, the Republic of Moldova, Montenegro,
the Slovak Republic, Spain), and some countries have no regulations
in place setting out protection measures for whistle-blowers (the
Czech Republic, Finland, Hungary).
41. Concerning the regulations on repentance, in some countries,
like Georgia and the Republic of Moldova, the pertinent provisions
apply automatically, which was considered, in different monitoring
reports, to be problematic. In some countries, provisions allow
for the return of the benefit to the repentant; in this regard, recommendations
have been made to exclude this possibility from the legal framework.
42. Several issues arising from the system of statutes of limitations
with regard to corruption offences have been highlighted as being
potentially problematic by various international bodies (including
GRECO, the OECD and the United Nations Convention against Corruption),
such as limitation periods which appear to be disproportionately
short in relation to the time required in practice to guarantee
an effectively investigation and prosecution. Similarly, criticism
has been voiced about very strict sets of grounds for suspension
or interruption of statutory limitation periods, especially in countries
where members of the judiciary enjoy immunities and where the time
needed to lift these immunities does not constitute one of these
grounds.
43. Criminalisation of corrupt practices needs to address the
ever-changing and constant development of the forms it takes. Therefore,
legislation and practice need to be routinely reviewed and, if necessary,
adapted so as to permit an appropriate assessment of even those
corrupt practices within the judiciary that are particularly difficult
to decipher, including those related to exchange of favours, hierarchical
pressure or external interference.
44. The national frameworks for disciplinary proceedings have
sometimes been considered as necessitating improvement to comply
with the standards developed by international bodies, especially
with regard to the possible interference in the independence and
impartiality of the disciplinary bodies, like in the case of “the former
Yugoslav Republic of Macedonia”.
Note
45. In terms of adjacent legal provisions, I should like to highlight
four issues that, in my opinion, merit closer attention.
46. Conflict of interest and impartiality: Most national provisions
comprise regulations on conflicts of interest and provide for Codes
of Ethics for the judiciary, while allowing parties to challenge
judges deemed to be lacking impartiality. It is to be noted that
such motions have been found to rarely or hardly ever be successful, for
instance in Bulgaria, Luxembourg and Monaco. Other countries, like
Poland, have been invited to consolidate their provisions on conflicts
of interest.
47. Ancillary activities: The approach varies between the member
States with regard to what type of ancillary activities judges are
allowed to engage in. In countries in which political affiliation
is permitted, monitoring reports have highlighted the political
involvement of the judiciary (and subsequent support) as a challenge
in the fight against corruption, like in the case of Austria.
48. Income, declaration of assets and regulations on gifts: Judges’
income varies considerably between Council of Europe member States
and does not seem to have any direct effect on the existence of
corruption. In countries like France, where judges’ income is not
considered to be high in comparison to the average national revenue,
Note judicial corruption does not appear to be
widespread, while in other countries like Romania, in which judges’
salaries are considerably above the national average, cases of corruption
are numerous. The system of declaration of assets was considered
as needing improvement with regard to the lack of liability in case
of false declarations (Armenia, Poland) or with regard to verification
of declarations (Hungary). With regard to the framework regulating
the acceptance of gifts, “the former Yugoslav Republic of Macedonia”
was invited to clarify the nature of such acts.
49. Recruitment/promotion/dismissal: Promotion or advancement
is based either on merit or on seniority, with the competent authority
in charge of taking the relevant decisions being, in most countries,
the judicial body concerned. Some countries in which other authorities
are in charge of recruitment, promotion and dismissal or play a
significant role in these proceedings have been called upon in several
monitoring reports to reduce outside interference in such matters
– notably Albania with regard to the appointment of high-ranking judges.
CEPEJ has observed that recruitment procedures for judges are becoming
increasingly similar in member States, in that they are most often
based on a competition and/or demonstrated experience.
Note While this increasing reconciliation
of recruitment procedures is a welcome development, a case that
recently caused a stir in Germany (a country where the judiciary
is generally perceived to be free from corruption) demonstrates how
the misbehaviour of one member of the judiciary can negatively affect
the public’s trust in the system. I am referring to an incident
where a judge sold exam answers to law students. He was sentenced
to five years imprisonment on account of duress, bribery and breaches
of secrecy earlier this year.
Note When it comes
to dismissal of judges, a noteworthy case that illustrates the danger
of undue political interference with the judiciary, and which has
gained attention in recent years, is the case of Ukrainian Supreme
Court judge, Mr Oleksandr Volkov. In its judgment regarding the
latter’s application,
Note the European Court of Human Rights ordered
Ukraine to “secure [his] reinstatement in the post of judge of the
Supreme Court”, for his dismissal had been unfair and thus in breach
of Article 6.1 of the European Convention on Human Rights (guaranteeing
the right to a fair trial by an impartial and independent tribunal).
In accordance with the terms of a Decree of the Ukrainian Parliament
of 25 December 2014, Mr Volkov was eventually reinstated on 2 February
2015.
Note Relatedly,
I note that in April 2015, five judges were reportedly dismissed
across Ukraine by the High Commission for Judges' Qualification,
upon request from the Prosecutor-General, on suspicion of corruption.
Note
5.2.2 Implementation/practice
50. None of the international reports consulted for the
purposes of preparing the EHRA’s
report, issued either by monitoring bodies or civil society,
provide relevant and consolidated information on alleged and known cases
of corruption in the judiciary. Various references to certain individual
cases are made throughout reports, which do not, however, provide
an accurate picture of the extent of corruption, its typology and
the ratio of accountability.
51. Similarly, the lack of consolidated statistics, disaggregated
according to all procedural stages of corruption cases, was highlighted
in the EU Anti-corruption report.
Note
52. I note with concern the prevailing lack of information, or
of access to information, capable of giving an accurate overview
of the situation in Council of Europe member States with regard
to investigating and punishing judicial corruption, despite the
express recommendation in this regard made in
Resolution 1703 and
Recommendation
1896 (2010).
53. It is of utmost importance that member States undertake firm
steps with regard to making such information available and easily
searchable in their national databases. I would also stress the
need for the Council of Europe monitoring bodies to insist on receiving
from member States, on a systematic basis, both statistical and
substantive information concerning cases of judicial corruption
(at all stages of proceedings).
54. Turning to the identified cases of career-related corruption,
the EHRA’s
report mentions examples of cases concerning recruitment and
advancement (in Albania, Azerbaijan, the Republic of Moldova) on
the one hand, and corrupt practices related to career competitions
on the other (in Romania). With regard to case-related corruption,
corrupt practices were identified in bankruptcy/liquidation proceedings
(the Czech Republic, Hungary, Poland), criminal cases (France, Lithuania,
Malta, the Republic of Moldova) and investment disputes (Ukraine).
55. Needless to add, these identified practices do not necessarily
reflect the overall scale of the phenomenon. The cases referred
to in the study might have been isolated cases on which information
was available, and which could thus be included in this report,
while other countries – including countries where corruption among
judges might potentially be prevalent on an even larger scale –
could not be mentioned because of the lack of transparency and information
on existing cases of judicial corruption. As I have already noted
in my first
report on judicial corruption (at paragraph 70):
“It needs to be clearly understood
from the outset, therefore, that the countries which have made the most
progress in terms of transparency are the ones that will have the
‘worst’ statistics. Any policy-based assessment of these countries
must make allowance for this, so as not to penalise the very countries that
have done the most to combat corruption in the judiciary.”
56. In this connection, one should pay special attention to countries
in which the judiciary is widely perceived to be prone to corruption
or, in other words, where the majority of citizens do not have trust
in the very institution on which they rely to combat corruption.
According to Transparency International’s
2013 Global corruption barometer, the judiciary is among the three least trusted institutions
(out of a total of ten) in Albania (where 81% of respondents to
the survey felt that the judiciary was corrupt or extremely corrupt,
making it the least trusted institution), Armenia (69%, least trusted
institution), Azerbaijan (42%, second least trusted institution),
Bulgaria (86%, least trusted institution), Croatia (70%, second
least trusted institution), Georgia (51%, least trusted institution),
Lithuania (79%, second least trusted institution), the Republic
of Moldova (80%, least trusted institution), Portugal (66%, second
least trusted institution, on a par with parliament and the military),
Romania (58%, third least trusted institution), Russia (84%, third
least trusted institution), Serbia (82%, least trusted institution),
the Slovak Republic (69%, least trusted institution), Slovenia (54%,
third least trusted institution), Spain (51%, third least trusted
institution) and Ukraine (87%, least trusted institution).
57. With respect to the forms of corruption identified, cases
of judges offering favours in exchange of money or other benefits
or favours are reported to exist, though no information is available
with regard to those responsible being brought to justice. Most
sources mention bribery as the most common practice (in respect of
Armenia, Azerbaijan, the Czech Republic, Estonia, Greece, Italy,
Latvia, Lithuania, the Republic of Moldova, Romania, Serbia, Slovenia,
Turkey). There are reports of cases of speeding up a trial in order
to benefit one of the parties to a proceeding (Croatia), as well
as of delaying proceedings for the same purpose (Estonia). Other reports
mention biased rulings (Italy, Malta, the Republic of Moldova, Romania,
Turkey). In Armenia, the lack of cases brought before a court, despite
the alleged existence of wide-spread bribery practices, was criticised by
the national ombudsman.
Note
58. Another matter of concern pertains to the difficulty in obtaining
information on the follow-up given to proven cases of judicial corruption.
In particular, it would be helpful to have information on whether
or not an opportunity is offered by national authorities to have
those cases which had been decided by a judge subsequently convicted
of corruption re-opened – a possibility that I strongly encourage
member States to provide for.
59. It is crucial that reported cases, or situations which can
be assimilated to corrupt practices and which are made public through
the media or civil society, are effectively investigated by the
national authorities and prosecuted if they are well-founded. Such
reactivity will help (re)build trust in the authorities’ commitment
to fighting corruption, end the climate of impunity, and begin to
change the perception of judicial corruption being widespread. This
is particularly vital in cases which suggest the existence of corruption
of a considerable magnitude. By way of example, I took note with
concern of recent reports about the alleged embezzlement of €5.6
million (300 million roubles) by the Moscow court system, and I
hope that the competent authorities will ensure a swift and effective
investigation into the allegations while protecting from retaliation
those who have made the allegations public.
Note Relatedly, making
the results of such investigations known, and keeping a public record
of judges convicted of corruption public, will contribute to establishing
a firm stand in the fight against corruption. This would also have
a deterrent effect.
60. As regards specialised national structures dedicated to tackling
corruption, it is worth mentioning that the countries which have
set up anti-corruption agencies have seen positive developments
relating to the implementation of anti-corruption laws. The
EU
Anti-corruption report refers to positive examples found in Croatia, Latvia,
Romania, Slovenia and Spain. In Romania, although the country is
still considered as one of the most corrupt among all EU member
States, the work of the anti-corruption directorate was praised
in international reports as a significant effort in line with the
country’s commitment to eradicate the phenomenon.
Note
61. Lastly, some reports express concern over lack of judicial
determination and capacity to tackle complex or sensitive corruption
cases, as well as over limited dissuasiveness of sanctions, which
are either imposed by courts too rarely, suspended too often or
generally too weak.
Note Together with the limited overall number
of cases of corruption reaching the stage of judicial proceedings,
this trend is of particular concern.
5.2.3 The perception
of judicial corruption
62. The perception of corruption in the judiciary has
been researched and monitored by specialised international organisations,
such as Transparency International, which regularly publish perception
indices based on complex surveys undertaken at national level. The
trends thus identified with regard to specific countries serve as
an indicator of the effectiveness of the efforts undertaken by the
relevant authorities to tackle the problem.
63. According to Transparency International, the perception of
corruption among members of the judiciary varies from one State
to another, with the latter being considered the most corrupt institution
in some States (Albania, Bulgaria, Croatia, Georgia, Slovak Republic,
“the former Yugoslav Republic of Macedonia”, Ukraine), and the least
corrupt among national institutions in others (Denmark, Norway).
In some countries, the perception of corruption has not changed,
despite clear indications that the system has been improved (Czech Republic,
Georgia). This stands as a testament to the need to re-establish
the trust of the population in the judiciary.
64. It transpires from the
EU
Anti-corruption report that corruption continues to be perceived as being wide-spread
in many EU countries. In Bulgaria, Croatia, the Czech Republic,
Lithuania, Romania and Greece, between 84%-99% of respondents considered
that corruption was widespread in their country. Similarly, one in
12 Europeans (an average of 8%) stated that they had experienced
or witnessed a case of corruption (although not necessarily within
the judiciary) in the past 12 months.
Note
65. On a positive note, there are examples where the growing concern
of the population over corruption, as revealed in Transparency International’s
perception surveys, translated into the inclusion of the fight against (judicial)
corruption in the political agenda and corresponding concrete policies,
as in the case of Romania and Ukraine.
Note
66. In this connection, it is equally important to note that the
perception of the judiciary as being one of the most corrupt sectors
is sometimes clearly in line with certain findings of the Council
of Europe monitoring bodies following their reports or visits (as
in the case of Albania and Ukraine).
67. The media is generally acknowledged to be one of the key actors
in exposing corruption cases, although in some countries it is considered
as influenced (Belgium, Bosnia and Herzegovina, Cyprus, Romania),
under self-censorship (Bulgaria, Greece, the Republic of Moldova,
Serbia, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine),
not entirely free to publish on the matter (Albania, Azerbaijan)
or at risk of defamation proceedings (Austria, Poland). In some
countries, like the Czech Republic, the climate has seen positive
developments, with the media now being less restricted in exposing
individual cases. Then again, reports suggest that there have been
situations in which the media was seen to have exerted undue pressure on
judges by way of overexposure of ongoing cases and thus possibly
influencing their outcome (such as in Romania).
68. Media throughout the 47 member States have addressed, on various
occasions, the matter of judicial corruption, highlighting either
specific cases or general matters related to the system in place
at national level to tackle judicial corruption. Numerous critical
articles
Note have been published,
especially in France, Turkey and Ukraine, on matters relating to
judicial corruption. In some countries (for example Romania), the
media closely follow any ongoing investigations into alleged judicial
corruption, and the many convictions make the headlines of most
national newspapers and television channels. Despite the persistence
of corruption, this transparency has ensured the gradual disappearance
of the climate of impunity. It has also contributed to raising awareness on
the matter, leading to civic involvement.
Note
69. Civil society is mostly active in the fields of awareness-raising
and policy-making activities. In some countries, individuals set
up platforms for exposing corruption (like in Georgia). NGOs monitor
the investigation of corruption cases and publish reports, which
often also comprise information on the framework for preventing and
combating judicial corruption.
70. To conclude on this point, the perception of widespread judicial
corruption directly reflects individuals’ trust in the national
judicial system, and as such, it is a matter of great concern. Member
States should take all necessary measures to restore trust in the
system at national level, monitor closely and systematically the evolution
of perception indicators, and develop a viable strategy to remedy
the lack of public trust in the judiciary including, first and foremost,
by striving for greater transparency. Independent reporting on alleged corruption
is also of great importance, and is likely to have a deterrent effect.
I can only urge member States to (continue to) pursue policies that
create an environment conducive to promoting media freedom. Moreover, I
invite member States to review and revise, if necessary, their legislation
and practice concerning the protection of whistle-blowers, in line
with
Resolution 1729
(2010) and
Recommendation
1916 (2010) on the protection of “whistle-blowers”, as well as the
recommendations made in our committee’s report on “Improving the
protection of whiste-blowers”,
Note which
will be debated by the Assembly at its June 2015 part-session.
5.3 General findings
of and conclusions drawn from the comparative study
71. One of the major obstacles in the fight against corruption,
which emerged with respect to a considerable number countries is
the political influence or pressure exerted over the judicial process,
either related to the organisation of the profession (for example
appointments, promotion, removal from office), or to interference in
the outcome of cases. This has been identified as a matter of concern,
by various reports, in Albania, Armenia, Azerbaijan, Belgium, Bulgaria,
Croatia, France, Georgia, Germany, Hungary, Ireland, Italy, Latvia, Lithuania,
the Republic of Moldova, Montenegro, Romania, the Russian Federation,
Serbia, the Slovak Republic, Slovenia, Spain, “the former Yugoslav
Republic of Macedonia”, Turkey and Ukraine.
72. It is clear that a judicial system free from corruption must
be based on the key principles of the independence of the judiciary
and the impartiality of judges, which constitute the pillars in
any State governed by the rule of law. Indeed, the danger of undue
influence and political interference in the independent functioning
of the judiciary can hardly be overestimated, for it subverts institutional
checks and balances and makes the system prone to political favouritism
and corruption. Such influence seems to be growing in some member
States. I note with concern, for example, the claims by the former
President of the Constitutional Court of Turkey, Mr Haşim Kılıç,
that the members of the court had come under intense pressure from
the government.
Note Moreover, Turkey’s
Supreme Board of Judges and Prosecutors (HSYK) has apparently reassigned
hundreds of judges and prosecutors since January 2014, in what has
reportedly been a retaliatory measure for a major graft investigation
involving high-ranking politicians initiated in December 2013.
Note Such a “reshuffling”
of the judiciary is, at best, likely to be seen as an attempt by
the authorities to exert influence over the judiciary – with potential
harmful effects on the public’s trust in the latter’s independence
– and may even be evidence that the institutional set-up allows
for arbitrary and undue political interference in the administration of
justice.
73. This point was also raised during the committee’s discussion
on my preliminary draft report in March 2015, and one colleague
considered that, in countries where the judiciary is placed under
the direct administration of the Ministry of Justice, there was
a potential conflict of interest and risk of maladministration in
cases of individuals challenging executive acts. Concern was also
expressed that political appointments of judges could create doubts
as to the latter’s independence and impartiality. While I personally
agree that merit-based judicial self-administration should be strengthened,
not least since it is preferable to political appointments of (Supreme
Court) judges, I am reluctant to recommend the setting up, in all
countries, of an independent high judicial council. The reason for
this is essentially two-fold: first, a number of examples suggest
that there exist conflicting views regarding the notion of “independence”
when it comes to the composition of judicial councils – who should
be entitled to sit on such a panel (judges, prosecutors, other legal professionals?)?;
which of these groups should have the majority?; and, maybe most
importantly, by whom should the members be appointed (by their peers,
by parliament, by the government?)? It appears to me that these
questions, which have been addressed in quite some detail in a number
of opinions by the Venice Commission, go beyond the scope of the
present report. In this connection, I have it to understand that
my colleague Mr Bernd Fabritius (Germany, EPP/CD) will explore matters
relating to the institutional set up of the judiciary (with a particular
focus on prosecutors) as well as the danger of “vertical interference”
in the independence of judges, in his forthcoming report on “Strengthening
the rule of law in South-East European countries through targeted
reform of the legal system”.
Note Second, and as
a correlate of my first argument, I am not convinced that the involvement
of the Ministry of Justice in the administration of the judiciary
is of itself problematic, The case of Germany can be seen as exemplifying
this. There, the fact that responsibility for the recruitment and
promotion of judges rests with the Ministers of Justice (at the
Länder and Federal levels) does not
appear to lead to a situation where the executive exerts inappropriate
political control over the judiciary. What I will highlight, however,
is that wherever the appointment of judges is left in the hands
of the executive, these decisions should be preceded by a transparent
and objective selection process involving a number of actors, including
high-ranking judges and other members of the judiciary.
74. This leads me to another area of concern which is closely
linked to the appointment of judges, namely the latter’s promotion.
Here again, more should be done to increase judicial independence
and public confidence, by putting in place strongly merit-based
promotion procedures.
75. During the committee’s discussion on my preliminary draft
report, emphasis was moreover put on the importance of ensuring
that transparency rules are fully applicable to the judiciary. While
I support this call, especially against the background of the corresponding
recommendations made by the GRECO (see paragraph 48 above), I should
like to add that the existence of adequate legal provisions on asset
disclosure (and also on accessory activities) is a necessary, albeit
insufficient condition for minimising corruption risks; there must
also be effective monitoring of compliance with these rules.
76. Another issue is related to the extent of judicial corruption:
from the legal point of view, the existence of corruption can only
be established through effective prosecution and punishment of the
perpetrators. In a judicial system which benefits from the credit
of being generally functional, only proven and convicted corruption
can serve as a basis for establishing the actual corruption level
in a given country.
77. On a related note, the assessment of the general framework
related to corruption can only serve as an indicator of potential
causes, setbacks or loopholes in the system, which might stand as
premises for corruption cases. Seen in conjunction with the perception
of corruption within the system, it can, however, provide a clear indication
of the credibility of corruption allegations.
78. The inaccessibility or lack of information concerning the
implementation of the provisions on combating corruption make it
difficult to establish the effectiveness of the system and can lead
to assumptive inferences with regard to the viability of the provisions,
as they can only be assessed
in abstracto.
Transparency in exposing cases of judicial corruption by making
information available about the investigations and convictions is
beneficial to the member States, as it contributes to strengthening
people’s trust in the judicial system. The fact that the research
on the basis of which I have prepared the present report was severely
impeded by the lack of information is particularly lamentable because
I highlighted the need to collect reliable information and statistics,
especially on prosecutions and convictions, already five years ago,
in my first report on judicial corruption on the basis of which
the Assembly adopted
Resolution
1703 (2010).
Note Against this background, I chose
to include a corresponding recommendation in the draft resolution.
6 The consequences
of corruption on the human rights protection system
79. In the preamble to the Council of Europe
Criminal
Law Convention on Corruption, it is emphasised that “[c]orruption threatens the rule
of law, democracy and human rights, undermines good governance,
fairness and social justice, distorts competition, hinders economic
development and endangers the stability of democratic institutions
and the moral foundations of society”.
80. Fair trial guarantees can be undermined in various ways through
corruption, which can impede the administration of justice (if related
to career steps, for instance), the rights of the parties involved
(by unbalancing the equality of arms, for instance) and the efficiency
of the procedure (by corrupting judges into delaying proceedings,
for instance in order to secure impunity by reaching time limits
in criminal cases).
81. While case-related corruption can sometimes consist in isolated
situations and might not affect the overall career-long conduct
of the respective judges involved, career-related corruption can
have more extended effects: there is reason to believe that judges
who entered the profession or who were promoted through corrupt
practices are prone to partiality (especially towards the parties
having supported them) and vulnerable to blackmail and pressure.
Questions could also be raised as to their professional competences
and the quality of their work, even with regard to situations in
which they are formally impartial and independent.
82. In cases in which the European Court of Human Rights has found
a violation of Article 6 of the Convention with regard to the independence
and impartiality of domestic courts, certain shortcomings have been
expressly identified,
NoteNote opening the possibility for both
the respondent States concerned, as well as other Contracting Parties
which might face similar problems, to tackle the issues in the process
of executing these judgments, in particular by adopting general
measures in order to improve the system and prevent further similar
violations. The process of implementation of these judgments is
often complex and lengthy, not only because it may necessitate intricate
reforms at national level,
NoteNote but also because of the large backlog
of cases pending before the Committee of Ministers.
83. I would like to stress yet again, in line with the many other
reports and positions taken by the Council of Europe’s various bodies,
the pivotal importance of implementing in a timely and effective
manner the Court’s judgments. It is a matter of grave concern that
cases which have been concluded by a final judgment of the Court
are left unaddressed at national level for years, especially with
regard to the general measures identified at the execution stage.
As outlined above, this has a direct impact on the fight against
corruption and on upholding the principle of independence and impartiality
of the judiciary, a fundamental requirement for a functional democratic
society and respect for the rule of law.
84. The struggle to improve the general framework for preventing
corruption and upholding the principle of independence and impartiality
of national courts as a guarantee for fair trials needs to be a
concerted effort. Standard-setting and monitoring bodies need to
co-operate closely with national authorities to identify and tackle
possible issues arising, just as they need to rely on each other’s
findings and efforts, by creating synergies in their approach to
this scourge.
7 What is to be done
85. The judiciary, as one of the three pillars of State
power, alongside the legislative and the executive, is the regulating
body of any democratic system. It applies and interprets the law,
delivering justice to the people. In the absence of a functional
and efficient judiciary, the legal framework setting out individuals’
rights and freedoms fails to achieve its purpose. The conclusions
drawn from the comparative study undertaken upon request of the
committee leave no doubt that member States must pursue and intensify
their efforts to develop a comprehensive legal and institutional
framework to prevent and eliminate corruption among judges, to ensure that
existing legal norms are properly enforced (which requires that
they be well understood), and that justice is not only done, but
is also seen to be done.
86. But the independence of the judiciary is not only key to preserving
the integrity of the justice system and guaranteeing individuals’
effective enjoyment of their human rights; it is also a crucial
factor in the fight against corruption in other sectors, as well
as in the fight against organised crime.
Note It
is for the judiciary to review cases of alleged corruption, given
that it is the only authority capable of establishing the existence
thereof and of sanctioning corrupt conduct. It is thus all the more
important that the very entity which is tasked with deciding on
allegations of corruption is free from such practices.
87. Moreover, a trustworthy judicial system needs to be free from
undue interference and pressure from outside if it is to function
in compliance with relevant international standards. As part of
a complex institutional structure, it cannot function properly if
impeded, just as it impedes the proper functioning of the other
parts if its functioning is inadequate. It is thus crucial that
the struggle to improve the overall system is a concerted effort,
led in a constructive manner.
88. The judiciary needs to pursue and intensify its efforts to
address the lack of public confidence, with particular attention
to be paid to education and training, so as to improve the drafting
of judicial decisions, as well as the need – in many instances –
to provide for institutional discussions on ethical issues. The
procedures for the appointment, promotion and dismissal of judges
are another area of concern which must be addressed in order to
increase judicial independence and public confidence therein.
89. Another aspect of particular importance is making the fight
against corruption (including judicial corruption) a transparent
process, and ensuring that civil society and the media are free
to report on and monitor such cases, thus helping to put an end
to impunity. Such active engagement and support has seen beneficial
results in tackling corruption in other sectors, such as public
procurement; this good practice should thus be promoted.
Note
90. I would also like to stress the support given to civil society
to participate in the monitoring process concerning corruption prevention
in member States. An accurate perspective can only be acquired by
the Council of Europe monitoring bodies by consultation with all
relevant stakeholders implicated in the prevention process. To date,
the only input provided by civil society representatives which is
taken into account by monitoring bodies are some of their reports
and surveys on the perception on corruption. Informal consultations are
of course taking place, but it may be beneficial to more systematically
involve civil society, for example by means of formal requests for
information.
91. I should therefore like to recall
Resolution 1943 (2013) and
Recommendation
2019 (2013) on corruption as a threat to the rule of law, and urge
member States to give priority to implementing the Assembly’s call
on them to recognise the role of NGOs and the media in the fight
against corruption and strengthen collaboration with them and the
support given to them. The fight against judicial corruption needs
as many allies as it can get, and excluding valuable partners cannot
but prejudice the intended result.
92. As a general concluding remark on the approach to be taken,
I would like to emphasise the need to collect centralised data on
detected corruption within the judiciary, based on which a comprehensive
risk assessment should be carried out. Only then can and should
targeted measures be taken and tailored policies implemented in
order to tackle the most recurrent irregularities in the system.
There is no one-size-fits-all solution for all member States, as
issues identified as risk factors vary considerably from one country
to another. Therefore, anti-corruption strategies must be developed
with due consideration to the specificities of each system and the
particular problem areas identified.
