CORRUPTION IN THE JUDICIARY
Josip Kregar, Prof., Ph.D.
Monday, January 06, 2015
P.Eigen
"Then, the countries in the region have
multitude of anti-corruption laws, but they
also have judges appointed and beholden to
politicians who are selective about the
enforcement of these laws. What good are
these laws when crooked politicians know they
will not be applied ".
Risk
There is a long history of manipulation with anticorruption
campaigns, dangerous not only for the absence of their actual
effects, but also for their marked damages, direct and
indirect, to people nations, citizens and institutions Such bad
experiences give an argument for avoiding any discussion
about corruption. Even the benevolent hold that mere debate
about corruption in the judiciary is harmful and that the same
issue can be viewed from other starting points - such as an
organizational defect of inaccessibility to the public,
inefficiency, or disciplinary responsibility of judges. We
cannot agree with this view. Publicity of court proceedings is
not a procedural principle but rather demand for
responsibility towards democracy. Autonomy and
responsibility within the judiciary are inseparable
requirements.
Independence
Judicial branch of government is under the Constitution a
separate branch of government. A whole chapter of the
Constitution (Ch. 4., Arts. 117 to 123) contains basic
constitutional guarantees with which the judiciary is vested.
Constitutionally, the judicial branch of government enjoys an
independent status. Judicial power is exercised by the courts.
Under the Constitution, the establishment, jurisdiction,
composition and organization of courts and court
proceedings shall be regulated by law. Every citizen, and
every person under the national jurisdiction has the right to a
fair trial by an independent and impartial tribunal (Art. 29,
Constitution). The courts have to administer justice on the
basis of the Constitution and the law.
Structure
The Croatian judicial system is organised
hierarchically in three instances. 122
municipal courts, 114 misdemeanour courts,
12 commercial courts and 21 county courts
act as courts of first instance. The county
courts also decide on appeals against
decisions by municipal courts.
The Supreme Court is the highest court in
Croatia. The President of the Supreme Court
and the State Attorney are elected by
Parliament and appointed by the President of
the Republic.
Problems - Officialy: A Short List
• Selection and education
• Number of judges
• Backlog of cases
• Budget restrictions
Problems: Unofficial List
•
•
•
•
•
Education and Knowledge
Work Ethics
“Legitimacy” and reliability
Professional Enviroment
Corruption
Judges: Qualification
• To become a judge, a lawyer has to fulfil two
eligibility criteria: first, to pass the bar exam and
second, to have a certain number of years of
work experience, depending on the category of
court he is applying for.
• The judges are appointed by the State Judicial
Council. This is a special body, constitutionally
defined composed by the majority of judges.
• Once appointed, judges enjoy tenure until the
fixed retirement age .
Number of judges
Country
Number
Austria
Germany
France
England
Italy
Croatia
1.732
20.901
6.240
2.195
6.720
1.819
Number per
100.000
5.33
25,30
10,37
4,22
11,72
40,99
Number of judges.1
Country
Number
Bulgaria
Czech
Hungary
Poland
Slovenia
Croatia
1.550
2.716
2.757
7.771
774
1.819
Number per
100.000
19,76
26,62
27.18
20,33
39,41
40,99
Number of judges.2
Country
Irland
FYRM
Serbia/MN
Sweden
Slovenia
Croatia
Number per
100.000
3,04
31,74
33,34
18,94
39,41
40,99
Nations in Transition: Judiciary
1997
4.75
1998
4.75
2001
4.75
2001
3.75
2002
4,25
2003
4,50
2004
4,50
Croatia 4.25 4.50 4.50 4.25 4.25 4.25 4.25 4.25
4.25 4.25
•
•
Average 4.45 4.54 4.46 4.36 4.32 4.36 4.43 4.39 4.43 4.46
Median 4.25 4.25 4.25 4.25 4.25 4.00 4.25 4.25 4.25 4.25
Croatia 3.25 2.50 4.00 3.50 3.75 4.25 4.00 3.61
Corruption
Governance Obstacles to Business
Croatia
Based on relative rating of each obstacle by the country's enterprises
Eastern Europe Average
Excessive Taxes and Regulations
Former Soviet Union Average
Financial Instability
Inflation
Policy Instability
Results are based on the firms' perceptions of how much each of these factors
affect their performance. Results are scaled from 0 (no obstacle, least negative
influence on the firm) to 1 (serious obstacle, maximum negative influence on the
firm).
Street Crime/Theft/Disorder
Organised Crime/Mafia
Malfunctioning Judiciary
Estimates are subject to a margin of error, and thus precise rankings ought not be
inferred. These charts are based on research in progress, and in no way reflect the
official position of the World Bank, its Executive Directors, or the countries they
represent.
Note: The thick blue line represents the severity of each obstacle for business performance in the country you chose. Distance from the origin indicates higher obstacles, and thus poorer governance performance on
each dimension. The thin green line represents the average severity of each obstacle in the countries in the Former Soviet Union. The thin red line indicates the average severity of each obstacle for the countries in
Eastern Europe (outside the Former Soviet Union). To select a different country, please click on the "Input" tab below .
Source: "Seize the State, Seize the Day: State Capture, Corruption, and Influence in Transition" (PRWP 2444, http://w w w .w orldbank.org/w bi/governance/).
Korupcija (WB)
We live in a corrupt state.
„positive answers“
86
Ukraine
Russia
84
Slovakia
84
82
Croatia
77
Slovenia
76
Bulgaria
Romania
75
64
Hungary
Czech Republic
52
49
Poland
Austria
30
0
10
20
30
40
50
60
70
80
CEE AVERAGE: 69%
%
90
Corruption in the judiciary is a delicate
subject - subjetively
The publicly global and non-specific impression that there is corruption in the judiciary
is not righteous and accurate in all aspects, at least subjectively. Those working in
the judiciary have a permanent feeling of tension, responsibility and burden, and
think all accusations of corruption are unjust. From their day to day perspective
they blame this primarily on poor laws and demanding clients. It is true that laws
are: poor and incapable of regulating ordinary court operations and decisionmaking process, the number of cases, the culture of litigation, misuse of legal
authority, poor material background, poor motivation, etc. Formally, they are
there but the stress is on the conditions that are hard to change and that are not
directly related to corruption, which puts the debate about corruption in the
second place and its cases are proclaimed as isolated incidents.
Addressing the issue of corruption in the judiciary, however, also affects the groups of
people who are against any change and whose interests are jeopardized by these
debates. It is not that only direct participants in corruption are affected, but also
those tainted by the lack of strict ethic norms. Their motive is selfishness rather
than principle.
Denial
Corruption in the judiciary can be discussed without
accusing or defending, denial of topics and cases.
Hence, corruption in the judiciary is a legitimate
and, in principle, scientifically neutral object for
analysis. It should not be mixed with the
discourse of political debates and media
sensationalism, nor it must be brought down to
its penal law aspect or, more broadly, to the
positive empirical determination of the number
of cases.
System or character
It exists in a form in which every institution is prone to being
spoiled. It is an unavoidable outcome of the professional
and moral imperfection of humans who have the power to
make decisions that affect various interests. In addition to
the economic market every society has an exchange of
status and power and a supply and demand of illegal
services. These interactions are an integral part of the
system and its institutions; undesirable and dysfunctional,
but an accompanying “grey” part of it. From this
standpoint, corruption in the judiciary is nothing but a
reflection of human imperfection. It is a problem of values
and norms, rather than an institutional problem.
Corruption is said to be a problem of individual moral
weakness.
The Evil or Sin?
We have now got to a point of disagreement. I cannot accept the statement
that, there is corruption but, because it is incidental and seen as an
individual’s weakness, it does not appear to be dangerous. On the
contrary, it is understandable, for some people it is relative and justified.
According to some, a major disputable issue is its SCOPE, the grounds for
saying it exists, how it is measured and, optionally, whether the situation
is aggravated, or not. “Scope” means the number of cases, although strict
logical analysis should not pay any attention to it .
Discussion about the scope of corruption in the judiciary, from a
methodological viewpoint, and to-date debates about corruption in the
judiciary have been focused primarily on defending psychologically
persuasive attitudes that judges are incorruptible and, secondly, on
blurring the position of the interested groups. The main characteristic of
discourse is a denial of systemic importance of corruption and defining
this phenomenon as a matter of individual weakness.
It is not an individual or any specific number of individuals that suggest this
approach, but rather systemic effect of corruption in the judiciary.
Positive = empirical
The extreme empirical standpoint (immeasurable is nonexistent) and analytical
starting point are not the prevalence of a dogmatic legal method, criticism of
metaphysics or a critical view. If there is no evidence of corruption, if its cases
cannot be unveiled and quantified, if it is not indisputable, then it is invisible and
nonexistent. This is silent about the subject, a consequence of the standpoint:
“What cannot be discussed, must not be discussed”, which is implicit from an
epistemological standpoint. “Denial of immeasurable phenomena”, according to
Kolakovski “is, as a rule, governed by the rule of silence and the gesture of denial,
the articulation of which is the principle of confidentiality. So understood
positivism represents some sort of a life program, voluntarily narrowed, which
avoids taking part in everything that cannot be well expressed. An attempt is being
made to impose the language which releases from obligation to create the view
about major human conflicts, which creates a shield and unresponsiveness to
ineffabilia mundi and to the mentioned experience that being of qualitative
importance cannot be described”.
Hidden behind such methodological restriction, the burden of evidence is placed on
those claiming the absence of corruption, and for any unambiguous case there is
still the explanation that it is the exception rather than the rule, and that it is
about an individual rather than the system.
Corruption in the judiciary: what does
the number of cases show?
There is another standpoint from which to disclaim the statement that there is no
corruption in the judiciary because there are no criminal charges or verdicts. In
criminology, deviation and criminality are very much differentiated by the type of
violation. Not everything that provokes accusation is a criminal act which requires
criminal proceedings.
Many phenomena that point to corruption are not in principle treated as considerable
violations of judicial ethics or juridical code of honour. The following examples are
not considered violation of norms: a judge’s acceptance of a client’s invitation to a
free lunch , spending time at court with attorneys, accepting donations for
construction works and court equipment, and sponsorship of trips. Attorneys
frequently tell their clients which judge is “ours” or “theirs” and promise mediation
in speeding up the procedure. This should be distinguished from the criminal act
when they ask for some extra money “for the judge”. We, frankly, do not have any
information about the frequency of such cases, but the point is in that they do
exist and are not treated in practice as criminal acts, although they are
unambiguous manifestations of corruption in the judiciary. The absence of
proceedings against them does not mean that they do not exist.
“Gray zone”
As a rule, the act of corruption is a matter of extreme
confidentiality. All parties included in the direct
transaction (bribee and briber) are usually satisfied
with its outcome and aware of negative
consequences if their part in this criminal behaviour
is unveiled. This equally applies to those dissatisfied.
At the same time the victims of corruption, being
most frequently the general public and society as a
whole, are either unaware of the specific acts of
corruption, or already so tired of it that they are
insensitive to it”.
K. Ford, Internet Development Forum, World Bank Anticorruption Strategies, 1999.
Number does matter
Hence, the number of criminal charges for
corruption against judges and other court officials
is only of relative importance (“the dark figure” of
criminality) and unpronounced sentences are
entirely pointless. Moreover, this shows that one
of major issues of corruption control and
penalization exists in the very courts. The
outcomes of inappropriate penalizing policy are
used as proof that there is no corruption (medice
cure te ipso!), and this really is a paradoxical
twist.
∑
Corruption is not a rule, but an exception in the judiciary. It is,
however, a part of the established system, it is systemic,
not accidental. As a matter of fact I have written that: “A
general task is the upgrading of the judicial environment
which comprises stabilization of the judicial system.
Legitimacy of judiciary along with public confidence in
impartiality and efficiency of the judiciary are the
prerequisites for creating a due legal system and,
consequently, for the control of corruption. Although
corruption in the judiciary is incidental (the judiciary is not
any different from its social environment) and despite the
reasonable assumption that the moral qualities of judges as
professionals are outstanding and highly rated, one cannot
oversee very poor effects of law”.