“No system of government
and administration is immune from corruption by those intent on
the abuse of power”.
On 2 October 2007, I was appointed rapporteur by
the Committee on Legal Affairs and Human Rights to prepare a report
on judicial corruption (Doc.
2. At its meeting in Moscow on 10 and 11 November 2008, the committee
held a hearing on this subject, with the participation of the following
experts: Mr Piercamillo Davigo, Judge at the Supreme Court of Cassation (Rome),
Mr Dragos Kos, chair of the Group of States against Corruption (GRECO),
and Ms Elena A. Panfilova, Director General, Centre for Anti-Corruption
Research and Initiative, Transparency International (Moscow). I shall
be making several references to their contributions in this report.
3. The preamble to the Criminal Law Convention on Corruption
(ETS No. 173) states that “corruption 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”, and stresses that “an effective fight against
corruption requires increased, rapid and well-functioning international
co-operation in criminal matters”.
4. As the guest experts explained to the committee,
no universal definition of the word “corruption” has ever been adopted.
All attempts to agree on a definition at international level have
5. While the Criminal Law Convention on Corruption provides no
definition of corruption at all, the Civil Law Convention on Corruption
(ETS No. 174) defines it as “requesting, offering, giving or accepting,
directly or indirectly, a bribe or any other undue advantage or
prospect thereof, which distorts the proper performance of any duty
or behaviour required of the recipient of the bribe, the undue advantage
or the prospect thereof” (Article 2).
6. Transparency International (TI) defines corruption as “the
misuse of entrusted power for private gain”. TI adds that in addition
to material or financial interests it can also involve intangible
advantages such as the pursuit of political or professional ambitions.
More specifically, TI defines judicial corruption as “any undue influence
exerted on the impartiality of the judicial process by any operator
in the judicial system”.
I do not intend to use the term judicial/judiciary in its
strictest sense, that is, as referring solely to judges and prosecutors.
In this report, the word covers all players in the judicial process
(including the police).
TI identifies two main types of judicial corruption: political
interference by the executive
or the legislature in judicial proceedings,
and the use of bribery.
9. As TI points out, political interference may involve manipulation
of judicial appointments, salaries and conditions of employment,
but it can also take the form of threats against and intimidation
of judges. TI mentions Russia as an example of a country where the
political authorities have recently increased their influence over
3. Fact: visible corruption
is only the tip of the iceberg
In its 2007 global report on corruption, focusing
on justice and the fight against corruption, TI noted that “corruption
is undermining justice in many parts of the world, denying victims
and the accused the basic human right to a fair and impartial trial”.
There is increasing evidence of
widespread corruption within the judicial systems in many parts
of the world. The Council of Europe Commissioner for Human Rights
points out that “there is a widespread belief that the judiciary
is corrupt and that the courts tend to favour people with money and
contacts”, and “even worse, there are indications to show that people’s
suspicions are in some cases well justified”.
11. No democratic society can function if its judicial system
is affected by systemic corruption, often accompanied by systemic
corruption in all government departments. Judicial corruption undermines
the rule of law and the legitimacy of the public authorities, is
detrimental to society as a whole and poses an imminent threat to
the founding principle of democracy, namely equality of treatment
before the law.
Indeed, according to the Programme of Action against Corruption
adopted by the Committee of Ministers in November 1996: “The legal
profession plays an important role in the fight against corruption.
It is of paramount importance for the trust of the public in public
functions that, for instance, judges are independent and impartial
and should in no way become involved in corruption or be seen as
representing special interests”.
13. A corrupt judicial system, in practice, prevents any efforts
to combat corruption in other fields and thus provides a fertile
breeding ground for organised crime and even terrorism.
14. In some member states the Group of States against Corruption
(GRECO) has noted low public trust in the judiciary accompanied
by a perception that judicial corruption is very widespread. The
group has clearly stated that restoring public trust in judges and
the whole legal process necessitates determined institutional reforms
and reinforced protection of the judiciary from any kind of improper
15. The fact that national legislations generally provide for
sanctions against judicial operators who, in the course of their
duties, solicit or receive remuneration for performing a specific
act is apparently insufficient to prevent this problem.
As Mr Davigo quite rightly pointed out in his statement to
the committee in November 2008, it is extremely difficult to sanction
corruption, primarily because of the difficulty of obtaining information
on its existence.
17. He added that there was a major unknown in the statistics
on corruption, namely the discrepancy between the offences committed
and the offences actually detected. In his view, this is chiefly
due to the fact that the offence of corruption has no specific victim,
is not usually perpetrated before witnesses and is known only to
the corrupting and corrupted individuals (whose common interest
is manifestly to remain discreet). Furthermore, the police is primarily
organised with a view to dealing with visible offences.
18. Mr Davigo highlighted one specific feature of judicial corruption,
namely the fact that it frequently occurs in complex legal cases.
This means that judicial corruption cases are dealt with by courts
of a lower level than those involved in the cases in question (he
mentioned the example of a Court of First Instance examining a case
of alleged corruption in proceedings before the Court of Cassation).
This peculiarity causes certain difficulties for the person
responsible for prosecuting. As an example of the problems encountered,
he outlined a case of alleged corruption of a member of the Italian
Court of Cassation suspected of having links with a Mafia-type group.
The Court of Cassation decided that it would be illegal to ask a
judge who had taken part in in camera proceedings to testify on
the decision-making process in question concerning the opinions
and votes of individual members of the bench.
prevented the Court responsible for prosecuting the alleged case
of corruption from hearing statements from essential witnesses.
4. The main relevant
international legal instruments
20. Article 6 of the European Convention on Human Rights
secures the right to a fair hearing “by an independent and impartial
21. Article 2 of the Criminal Law Convention on Corruption (ETS
No. 173) provides that “each Party shall adopt such legislative
and other measures as may be necessary to establish as criminal
offences under its domestic law, when committed intentionally, the
promising, offering or giving by any person, directly or indirectly,
of any undue advantage to any of its public officials, for himself
or herself or for anyone else, for him or her to act or refrain
from acting in the exercise of his or her functions”, while Article
3 contains similar provisions for cases of passive bribery of domestic
Article 11 of the United
Nations Convention against Corruption
(UNCC) reads as
follows: “Bearing in mind the independence of the judiciary and
its crucial role in combating corruption, each State Party shall,
in accordance with the fundamental principles of its legal system
and without prejudice to judicial independence, take measures to
strengthen integrity and to prevent opportunities for corruption
among members of the judiciary. …”.
of the Committee of Ministers on the twenty guiding
principles for the fight against corruption includes two principles
which are particularly relevant to the fight against judicial corruption.
Guiding principle No. 3 is intended “to ensure that those in charge
of the prevention, investigation, prosecution and adjudication of
corruption offences enjoy the independence and autonomy appropriate
to their functions, are free from improper influence and have effective
means for gathering evidence, protecting the persons who help the
authorities in combating corruption and preserving the confidentiality
of investigations”. Guiding principle No. 6 aims “to limit immunity
from investigation, prosecution or adjudication of corruption offences
to the degree necessary in a democratic society”. In its first evaluation
cycle (2000-2002), GRECO evaluated the measures taken by member
states to implement these principles.
A model code of conduct for public officials is appended to
Recommendation No. R (2000) 10 of the Committee of Ministers to
member states on codes of conduct for public officials, although
Article 1 of this code stipulates that “the provisions of this Code
do not apply to publicly elected representatives, members of the government
and holders of judicial office”. It might be conceivable to devise
a model code of conduct for members of the judiciary. In this context,
reference could usefully be made to Opinion 3 of the Consultative Council
of European Judges (CCJE) on the principles and rules governing
judges’ professional conduct, in particular ethics, incompatible
behaviour and impartiality.
At the same time, the Committee of Ministers has instructed
a group of specialists on the judiciary (CJ-S-JUD) to “draw up a
recommendation with an explanatory memorandum, which would, inter alia
, update the Recommendation
No. R (94) 12 on the independence, efficiency and role of judges,
focusing on national courts, in the light of the developments which
have taken place since the adoption of this recommendation and to
strengthen and enrich the scope of the recommendation”.
I suggest that this group of specialists
take account of the conclusions of the present report and of Sabine
Leutheusser-Schnarrenberger’s above-mentioned report on “Allegations
of politically motivated abuses of the criminal justice system in
Council of Europe member states” and perhaps make a specific reference
to the fight against judicial corruption in the explanatory report
to the draft revised recommendation. The CJ-S-JUD is expected to
complete its work in December 2009.
26. All the measures recommended in this report to ensure courts’
complete independence from the political authorities apply equally
to the fight against judicial corruption: the pernicious mechanisms
used to influence judicial proceedings for political purposes can
also be, and are perhaps even more often, used to commit outright
It might also be worth looking at the independence and role
of prosecutors, including those of prosecutors general. In her report,
Sabine Leutheusser-Schnarrenberger notes that in the English criminal justice
system, for example, “there is another possible avenue for possible
political influence on individual cases: the role of the Attorney
There is already a Committee of Ministers recommendation –
– on the role of public prosecution
in the criminal justice system. The Consultative Council of European
Prosecutors (CCPE), set up in July 2005 by the Committee of Ministers,
is tasked with preparing opinions for the attention of the European
Committee on Crime Problems (CDPC) on the difficulties involved
in implementing this recommendation and with promoting its implementation,
as well as with collecting information about the functioning of
prosecution services in Europe. I wonder whether this recommendation,
which will soon be ten years old, is still sufficiently up-to-date
to encompass the many reforms that have been introduced in member states.
I would therefore encourage the CCPE to continue keeping a close
watch to ensure that Recommendation Rec(2000)19 is properly implemented,
bearing in mind the independence of prosecutors and having regard
to the reforms that have taken place since the recommendation was
adopted. If and when it sees fit, I would urge the CCPE to revise
this recommendation in a manner similar to the revision of Recommendation
No. R (94) 12, which is currently under way.
The recommendation in the Assembly’s aforementioned report
aimed at cutting the “umbilical
cord” of the right of justice ministers to give the prosecution
instructions concerning individual cases would also reduce the risk
of such instructions being used for the purposes of corruption.
Lastly, I would draw attention to the European
Charter on the Statute for Judges
although only a declaration, should serve as a reference for member
states. As stated in its explanatory report, the charter “endeavours
to define the content of the statute for judges on the basis of
the objectives to be attained: ensuring the competence, independence
and impartiality which all members of the public are entitled to
expect of the courts and judges”. More publicity should be given
to this text, which sets out all the principles of the statute for judges,
in particular as regards recruitment, appointment, career development
(promotion), liability, remuneration and termination of office.
Another way of combating corruption, including that in the
judicial sphere, might be to provide protection for whistle-blowers.
Proper protection from reprisals by their employers or others for
individuals who have the courage to report corruption would make
corruption more “risky” for would-be perpetrators, as it would be
more likely to be exposed. My colleague Pieter Omtzigt (Netherlands,
EPP/CD) has prepared a report on this subject, approved by the Committee
on Legal Affairs and Human Rights in June 2009,
which proposes specific measures
to protect whistle-blowers at national and European level.
32. The Council of Europe has already introduced a battery of
standard-setting instruments to combat corruption. However, merely
ratifying the relevant conventions is insufficient to eradicate
corruption: what is needed is a genuine political will backed up
by practical action to fight it.
5. The situation in
specific member states
According to the 2009 Global Corruption Barometer
published by TI, the judiciary
is the institution perceived to be most affected by corruption in
Armenia, Bulgaria, Croatia, Georgia, Kosovo
and “the former Yugoslav
Republic of Macedonia”. There is, therefore, a worrying distinction
between these countries and those – even more numerous – where corruption
is generally seen as a problem that afflicts all public institutions:
since it is the justice system that is responsible for prosecuting
the corrupt and protecting “whistle-blowers”, it is deeply discouraging
for the public if the justice system itself is seen as being even
more corrupt than other institutions.
At the same time, a Eurobarometer report prepared in 2008
on Europeans’ attitudes towards corruption
contains some interesting
facts about how the public perceives corruption in various sectors
in European Union member states. It is striking to observe that,
on average, 45% of the people interviewed in the 12 new European
Union member states thought that giving or taking bribes was widespread
among those working in the judicial system and 52% thought that
it was widespread among those working in the police service, whereas
in the 15-member European Union, the average was 22% and 25% respectively,
in answer to the same questions. For instance, 65% of Slovaks and
60% of Latvians interviewed believed that such practices existed
in the judiciary, as compared with 8% in Finland, 12% in Denmark
and 14% in the United Kingdom; 77% of respondents in Estonia and
98% in Romania thought that such practices existed in the police, as
compared with 7% in Finland and 16% in Germany. These figures are
mitigated by the fact that, on average, only 8% of those interviewed
said they had been asked to pay a bribe in the past twelve months.
The Council of Europe Commissioner for Human Rights (hereafter
“the Commissioner”) noted that “the politicised climate in which
the judiciary is operating” in Albania “appears to have impacted
negatively on the system of justice”. He heard “complaints that
political pressure prevented the judiciary from functioning independently
of the Assembly’s Monitoring Committee are concerned about “a weak,
badly remunerated and partly corrupt judiciary”.
government has adopted an anti-corruption strategy for 2007 to 2013.
This has led to a considerable increase in the number of corruption
cases against middle- and high-ranking officials. However, the Commissioner
notes that corruption remains very widespread in the judicial system,
stressing that “both international and national studies indicate
a high perception level of corruption in the justice system, seriously
impeding its proper functioning and undermining public trust in
institutions”. According to a number of international observers,
much remains to be done in this field, as the reforms geared to
reinforcing the judicial system have been held up.
Where Armenia is concerned, the Commissioner noted that “the
judiciary is still far from being independent”, particularly because
of pressure and intimidation of members of the judiciary “including
from central and local authorities and prosecutors”, exerting “improper”
While some measures
have been taken to facilitate “the proper exercise of the functions
of a judge”, the Commissioner stresses that “much still needs to
be done to ensure adequate implementation of the new legislation
and improve the public trust in the judiciary”. The Commissioner
considers the decisive role in selecting judges which the revised
constitution assigns to the Council of the Judiciary, most of whose
members are judges elected by their peers rather than by the president,
as “a positive step on the way to a real independence of the judiciary”.
The Commissioner encourages the adoption of measures to make the
process of selecting judges more transparent and fairer, to increase
their remuneration (the low level of which exposes them to corruption)
and to introduce mechanisms to promote and train judges in deontology
(particularly on the basis of the Code of Judicial Ethics which
came into force in December 2005).
During his visit to Azerbaijan, the Commissioner noted that
“there is a general perception in Azerbaijan that corruption infiltrates
most strata of society”, but that “it would appear that the legislative
framework to secure the independence of judges is in place”.
Moreover, in order
to strengthen the independence of judges and make them less vulnerable
to corruption, their salaries increased by a factor of 25 between
2000 and the end of 2007. The Commissioner does, however, point
out that “in spite of all these recent improvements – more judges,
better selected and qualified, more aware of international human
rights standards – the actual independence of the judiciary unfortunately
still appears as far from being secured, in minds and deeds …”. “The
judiciary appears to be particularly exposed to and affected by
corruption. Despite the efforts to reform the judiciary … much of
the administration of justice seems to be influenced by pecuniary
interests. As in many countries in fast transition from the former
Soviet system, problems of corruption and dependence on the executive
mar the Azerbaijani justice”.
The authorities have adopted measures which demonstrate their
will to combat corruption (notably by investigating and punishing
more and more cases of corruption), but the Commissioner “would
like to guard against the risk of partisan politics in the bringing
of charges, the timing of charges or the severity of sentences”.
In its report,
TI also notes that despite the legislative improvements, no radical
change has come about and that there is a discrepancy between the
letter of the law and its implementation.
In their report, the co-rapporteurs of the Assembly’s Monitoring
Committee on Bosnia and Herzegovina
that “corruption is rife throughout the country”.
A complete restructuring
of the national court system was recommended as early as 2002. Many
reforms have been undertaken since, but the functioning of the judicial
system is still open to severe criticism.
After his visit to Bulgaria, the chair of the Assembly’s Monitoring
Committee described it as “a country with endemic corruption that
has gained the ranks of the administration and the judiciary”.
The Borilski case is considered as a clear
illustration of this corruption. In this case, which involved the
murder of a Bulgarian in France, the presumed murderers were acquitted
despite the forensic evidence gathered by the French police and
transmitted to the Bulgarian courts. One of the two defendants was
none other than the son a former senior officer in the Bulgarian
criminal investigation department, who has since become a highly
According to the European Commission, corruption has reached
such a pitch in this country that it is influencing and distorting
the whole political and democratic process. It is reported that
a mere 20% of the Bulgarian population trust the judiciary, perceiving
it as corrupt and ineffective (as compared with an average of 48%
in European Union countries).
It is also reported that in 2007,
before Bulgarian accession to the European Union, efforts had been
made to curb corruption, such as that for example, in the tax department and
the traffic police, but that the government had, conversely, tolerated
a gradual increase in corruption in the judiciary.
European Union accession, work had been initiated to reinforce the
judicial system and combat corruption, involving close co-operation
between the European Commission, the member states and Bulgaria.
In November 2008 the European Commission
blocked Bulgaria’s access to nearly €500 million in European funding
for its failure to fight corruption and organised crime. The chair
of the Assembly’s Monitoring Committee notes that the reform of
the judiciary has led to many “cosmetic changes”
which have pushed the reforms in
an “undesired direction”. The independence of the judiciary is not
yet guaranteed, particularly because the Minister of Justice presides
over the Supreme Judicial Council, where he has a right to propose legislation.
his note, the chair of the Monitoring Committee also suggests that
within the Supreme Judicial Council, judges, prosecutors and investigating
magistrates interfere in matters which do not concern them. He also
notes that the new five-year probation period for new judges “raises
serious difficulties for judicial independence”. Lastly, he mentions
his surprise “to find out that judges are trained only after their
appointment and that there is no system of evaluation of their competences;
… this, added to the widespread perception of corruption, gives
rise to … mistrust towards the judiciary”. Furthermore, lawyers,
judges, prosecutors and examining magistrates are all represented
on the Supreme Judicial Council, which means that the prosecutors on
the Supreme Council also vote on judicial appointments and promotions.
In order to tackle these serious problems, Bulgaria has adopted
two national anti-corruption strategies and two additional strategies
(adopted in 2004 and 2009) to combat judicial corruption. However,
these measures are deemed more declaratory than effective.
In 2008, a new agency was set up
to investigate organised crime and high-level corruption (the State
Agency for National Security). A section specialising in high-level
corruption cases has been introduced within the Public Prosecutor's
Office. Lastly, a new inspectorate working under the Supreme Judicial
Council is responsible for high-profile criminal cases and for analysing
the reasons for procedural delays before the courts. These innovations
would suggest that the Bulgarian authorities have now realised the
need to put an end to high-level corruption, including judicial corruption,
and that the requisite political will exists. However, only practical
results will prove that this is the case, and so far there are none.
For example, prosecutions leading to criminal convictions should
be brought against judges and prosecutors tainted by serious allegations
of corruption. According to Freedom House, the problems were still
there at the beginning of 2009.
I would suggest that the Assembly’s
Monitoring Committee keep a close watch on developments in this
field, possibly devoting a specific thematic note to the subject.
Where Croatia is concerned, TI notes that the judicial system
lacks transparency and that there have been cases of corruption.
The European Commission considers the state of the judiciary as
one of the main obstacles to the country’s accession to the European
Union. According to opinion polls, the general public consider the
Croatian judiciary as one of the most corrupt sectors in the country.
Very few members of the judiciary have been convicted of corruption
44. Although it acknowledges that it has difficulty assessing
judicial corruption in the Czech Republic (due to lack of accurate
data), TI considers that the Czech judicial system is not sufficiently
independent, coherent or efficient. TI also notes that the political
authorities are not averse to interfering in the judicial system.
The co-rapporteurs of the Assembly’s Monitoring Committee
on Georgia recently noted that “the authorities have initiated a
comprehensive package of reforms of the judiciary and justice system,
with the overall aim of strengthening the independence of the judiciary
…”, adding that they “intended [subsequently] to provide a detailed
analysis of these reforms”.
I would encourage them to analyse
the specific issue of judicial corruption, and note with interest
that in their previous report the co-rapporteurs had pointed out
that major progress had been made “in moving from a corrupt judicial
bureaucracy to a modern European judiciary system”, and that the
reform of the judiciary in Georgia had “advanced at a quicker pace
and with clearer objectives than in many other transformation societies
of central and eastern Europe”.
Several measures have
been adopted in Georgia since 2004 to tackle the sources of judicial
corruption, particularly by substantially increasing the remuneration
of judges and reinforcing controls on bribery (several judges have been
dismissed for accepting bribes). Nevertheless, while bribery has
decreased, TI points out that the judiciary is still influenced
by the executive. The current reform of the judiciary provides an
opportunity for reinforcing its independence.
46. Despite the virtually systematic denial of the existence of
any form of judicial corruption in western European courts, the
countries in question are not immune from the problem. Judicial
transparency in the broad sense requires reinforcement in these
countries too. In Germany the “Pirate Bay” case concerned alleged corruption
on the grounds of judicial partiality. The case, which concerned
copyright, was examined by a judge who is an active member of several
associations and foundations advocating the reinforcement of copyright (he
is even a member of the governing board of one of them). In this
case, which involved millions of euros in damages, the prison sentence
served on the defendants surprised all the observers at the proceedings. Although
judges must have the right to participate in activities of society,
such as labour union activities for example, one has to guarantee
that there is no bias in the decision making.
47. The fact that only a few German Länder have
judicial self-governance bodies along the lines of the judicial
service commissions found in nearly all European countries, together
with the fact that justice ministers in most Länder and
at federal level are allowed to give the prosecution instructions
concerning individual cases, prompted Mrs Leutheusser-Schnarrenberger,
when writing her aforementioned report, to suggest a number of, in
my view very sensible, reforms. Germany should set an example and
introduce participatory bodies to protect the judiciary as far as
possible from any political interference which, as we have seen
in other countries, can open the door to corruption.
On a positive note, I note that unlike most western European
states, Germany was not afraid of infringing the taboo, and in 2000
conducted an extensive survey to assess the extent of corruption
in the police, the judiciary and the customs offices.
This is an example to follow, and
I would encourage all member states to conduct similar surveys.
49. Italy has seen politico-judicial scandals (which the Italian
press call the “wars of the official gowns”) involving clear suspicions
that certain judges were being bribed to protect certain entrepreneurs
and politicians. During the hearing before the committee in Moscow
in November 2008, one of the guest experts, Mr Davigo, pointed out
that the Italian justice system had been very severe with corruption
in the judiciary. He added that it was nevertheless problematical
that, even though Article 319 of the Penal Code punishes judicial
corruption, there was no offence of influence peddling in Italy.
While cases of judicial corruption were very rare in Italy, when
they did occur they were very serious. He outlined one example involving
a politician (a former minister) who had argued that his obligations
as a parliamentarian prevented him from appearing in court. After
having obtained a large number of adjournments, he had finally been
convicted. This case had led to conflict between the judicial and
political authorities, the Italian Senate having criticised the
judges’ decision in 2001.
50. Another recent case also led to heated debate. It involved
the transfer to another court of the Catanzaro prosecutor, Luigi
de Magistris, at the request of his superiors and the then Minster
of Justice, Clemente Mastella. Mr de Magistris filed a complaint
against this transfer, and the judges dealing with his complaint suspected
that the transfer had been geared to damaging his reputation and
removing him from an investigation which had to be hampered (the
inquiry led by Mr de Magistris had highlighted links between local entrepreneurs,
both left- and right-wing politicians, a number of judges and the
former Minister of Justice himself).
In Italy, some political acts to prevent prosecution through
“made-to-measure” legislation are barely concealed. In 2006, the
Milan Public Prosecutor's Office applied to initiate proceedings
against Silvio Berlusconi and his lawyer David Mills for corruption
in relation to legal documents (notably for presumed perjury by
the lawyers). On 23 July 2008 a law was adopted granting judicial
immunity to the President of the Council (Prime Minister) in the
exercise of his functions. David Mills was sentenced to four-and-a-half
years’ imprisonment for “perjury intended to secure impunity for
Silvio Berlusconi and his Fininvest group or, at least, to preserve
the considerable profits made” (according to a Milan court). Sabine
Leutheusser-Schnarrenberger’s 2004 report on the Italian Law on
Legitimate Suspicion is likewise of relevance here.
In it, she found that
the law unduly slowed down the course of justice in certain cases,
undermined trust in judges as a whole and was inimical to the principle
of equality before the law.
The Assembly’s Monitoring Committee has also expressed its
concern about judicial corruption in Moldova (where some judges
allegedly grant political favours for money), and has recommended “guaranteeing
the independence of the judiciary and increasing the effectiveness
and professionalism of the courts”.
Committee co-rapporteurs note that a number of high-profile cases
“could easily be interpreted as politics interfering with justice”.
The national anti-corruption strategy for Moldova is currently being
implemented under a 2007-2009 action plan.
During his visit to Montenegro in 2008, the Commissioner noted
that “corruption is a cross-cutting issue affecting all spheres
of public life and is the main obstacle for any effective implementation
of human rights standards”.
He even mentions
a “widespread public perception that corruption infiltrates the
political sphere, legal system and public administration in Montenegro”.
the adoption of a law on the prevention of conflicts of interest,
geared to limiting incompatible or multiple functions by requiring
civil servants to declare their income, functions and allowances,
its implementation leaves much to be desired. The Commissioner does,
however, note that major changes made under the new constitution
to the organisation of the judiciary, including transferring the
power to appoint and dismiss judges from the parliament to the High
Judicial Council. He considers that “the perceived lack of independence
of the judiciary has been partially addressed with the new constitution
that vested the right of both appointment and dismissal of judges
in the reformed High Judicial Council instead of parliament. The
exception to this rule is the Supreme Court President who remains
elected by parliament”. However, some concerns have been raised
about the membership of the High Judicial Council, which apparently
fails to ensure its full independence and autonomy or safeguard
adequately against political influence.
Romania has similar problems to those encountered in Bulgaria
and the same mechanism for monitoring progress was introduced by
the European Commission after the country’s accession.
Public trust in the judiciary has
continued to decline in recent years.
The Supreme Judicial Council reportedly
acts as a syndicate attempting to obviate the requirements vis-à-vis
the second half of 2008, efforts have been made to reinforce the
transparency of the judiciary, but they have been limited to technical aspects
(publication of case law). The procedures for recruiting and promoting
judges and judicial staff have been made more transparent in order
to reinforce the independence of the judiciary.
I am alarmed to note that although the law prohibits this,
judges, indeed whole benches, are often replaced for no apparent
raises the question of the random assignment of cases to courts
and suggests that the latter are subject to certain types of influence.
It is vital not only that the instruments for combating corruption
exist, but above all that the political will to combat corruption
is genuine and determined. This political determination must be
affirmed and backed up with actions. In this context, it is interesting
to note that a former Minister of Justice, Ms Monica Macovei left her
office partly because of the break-up of the governing coalition
but also because of her strong anti-corruption rhetoric.
Where Russia is concerned, I note that the Monitoring Committee
co-rapporteurs “intend to address the issue of the fight against
corruption … as one of the key topics of [their] next visit”.
is an excellent idea. TI considers Russia as an example of a country
in which the political authorities have recently increased their influence
over the judiciary.
In the execution of civil sentences
and in tax matters, politics also has a great influence. The rapporteur
refers to the report prepared by Sabine Leutheusser-Schnarrenberger
on the “The circumstances surrounding the arrest and prosecution
of leading Yukos executives”
and to Resolution 1418 (2005)
adopted on the basis of that report. In this resolution,
the Assembly said that the prosecutions of Mikhail Khodorkovsky
and two other former Yukos executives went beyond the mere pursuit
of justice to include such elements as “the weakening of an outspoken
political opponent, the intimidation of other wealthy individuals and
the regaining of control of strategic economic assets” and that
they were “arbitrarily singled out by the authorities”. The Yukos
case is another example of the close relationship between “political”
motives and corruption in the strict sense: the circumstances surrounding
the sale at auction and resale of Yuganskneftegaz, Yukos’s main
production unit, as described in the aforementioned report, have
raised doubts in this respect. Moreover, like Mrs Leutheusser-Schnarrenberger,
the rapporteur notes with much concern “the fact that the two men
are again being tried for facts which appear to be essentially the
same as those for which they were condemned in 2005”.
It seems that the new process has
only been initiated in order to stop the release of the former Yukos
executives, whose original sentences are due to expire shortly.
In the case of Kudeshkina v. Russia,
European Court of Human Rights noted that the applicant’s dismissal
from the judiciary for having publicly criticised senior magistrates
constituted a violation of the European Convention on Human Rights.
In this case the applicant had publicly accused senior magistrates
of exerting pressure on her over a major corruption case in which
a police investigator was suspected of abuse of powers. In her statements,
she also suggested that this was not the first time the Russian
courts had been used for the purposes of commercial, political or
personal manipulation. The Court noted in this context that the
penalty applied, namely the applicant’s dismissal, was liable to
have a “chilling effect” on judges wishing to take part in the public
debate on the effectiveness of the judicial institutions.
In her new report, Mrs Leutheusser-Schnarrenberger talks about
the considerable pressure put on judges to convict.
The case of Judge
V.P. Savelyuk seems to show that the fight against judicial corruption can
itself give rise to infringements of judicial independence. It is
clear from this example that great sensitivity and scrupulous respect
for the rights of the defence are required when prosecuting judges
accused of corruption. A highly publicised but procedurally dubious
conviction of a judge who may very well be innocent is unlikely
to restore public confidence in any lasting way, let alone resolve
the problem of judicial corruption.
The HSBC/Hermitage case, which is described in detail in the
provides a striking
example of the dramatic consequences, even for major foreign investors,
of the alleged collusion between various law enforcement and tax
officials and various courts, which is also said to have involved intimidation
Such cases demonstrate
the vital importance of having an honest, effective justice system,
one that is capable of protecting the victims of criminal machinations
and prosecuting those responsible, and not the other way round.
In his 2009 report on Serbia, the Commissioner notes that
“the appointment of judges and prosecutors must be more transparent
and free of political influence in order to start rebuilding public
confidence in the judiciary and prosecution”.
Venice Commission had already denounced “a recipe for politicisation
of the judiciary” owing to the role played by the National Assembly
in the election of judges.
A law on the Anti-Corruption
Agency was adopted in October 2008, but it remains to be seen whether
this agency will receive the requisite human and financial resources.
In connection with “the former Yugoslav Republic of Macedonia”,
the Commissioner noted during his visit in 2008 that “the country’s
judiciary was frequently described by both national and international
stakeholders as weak and inefficient, with widespread perceptions
of political influence and corruption”.
adds that “to come to terms with shortcomings in the judicial sphere,
the government in 2004 adopted both a strategy and an action plan
for the reform of the judiciary. The aim was to strengthen the independence
and efficiency of the judiciary”. A number of reforms ensued (clarification
of disciplinary procedures, training and appointment of judges,
etc.). These reforms were described as “substantial progress”
the chair of the Assembly’s Monitoring Committee, and as “important
steps” by the Commissioner, although the latter notes that “public
confidence in the judiciary remains very low”.
The chair of the Assembly’s Monitoring Committee has noted
a number of questions surrounding the independence of the judiciary
in Turkey. The High Council of Judges “cannot initiate the prosecution
of a judge or prosecutor without the consent of the Minister of
This presents the risk
that where political interests are at issue, no prosecution will
be initiated. Furthermore, a recent survey conducted by TESEV
that the judiciary is not objective and often decides in favour
of the state. TI notes that public mistrust of the judicial system
has increased over the past few years. Judges are disproportionately
protected by immunity, which even protects them when they have demonstrably
accepted bribes, and it is hardly ever lifted. TI also denounces
the frequent use of reports by private experts, who are open to
bribery by parties to proceedings. Judges’ decisions are often based
on such reports. For a number of years, however, efforts have been
made to combat corruption in the judiciary. Judges and prosecutors
have been imprisoned or dismissed for accepting bribes. TI suggests
that the membership of the High Council of Judges should be modified
by abolishing the seats of the Minister of Justice and his under-secretary.
This would considerably reduce governmental influence over the judicial
appointment and promotion procedures.
In their latest information note, the co-rapporteurs of the
Monitoring Committee on Ukraine mentioned their concern about plans
which jeopardised the independence of the judiciary, notably concerning
the Minister of Justice’s intention to subordinate the State Judicial
Administration and Academy of Judges to his ministry.
such a position of subordination judges would naturally be more
exposed to any pressure the government might wish to exert. In the
same note, the co-rapporteurs added that “the majority of the population
believe that the judiciary is the most corrupt institution in Ukraine”
(according to the 2007 study by Transparency International).
The Serious Organised Crime Agency in the United Kingdom has
noted that organised crime has recourse to corruption in its activities,
and that on several occasions law enforcement officers have been
bribed and have collaborated with criminals.
In recent years the judicial system
has undergone a major overhaul in order formally to guarantee its
independence from the executive, including a reform of the appointment procedures
in all British courts. Indeed, according to our colleague, Sabine
Leutheusser-Schnarrenberger, “the creation, in 2006, of the Judicial
Appointments Commission (JAC) […] further strengthens the principle
of independence of the judiciary from political influence”. The
role of the Attorney General, however, which has given rise to heated
debate, notably in connection with the British Aerospace (BAE) and
“cash for honours”
cases, still remains
to be clarified.
6. Requisite measures
to combat judicial corruption effectively
66. My first recommendation would be to introduce measures
to prevent corruption among members of the judiciary, including
in member states where it is not yet a major problem. This is because
it is easier to prevent judicial corruption from emerging in the
first place than to cure it once it has spread through the system.
67. Drawing up codes of ethics for those involved in the administration
of justice, as well as mechanisms to ensure their application, would
help to develop this preventive aspect. As pointed out by the CCJE
in its Opinion No. 3 (mentioned above), “Public confidence in and
respect for the judiciary are the guarantees of the effectiveness
of the judicial system: the conduct of judges in their professional
activities is understandably seen by members of the public as essential
to the credibility of the courts”. This opinion should serve as
a reference when drafting codes of ethics.
6.2. The need to collect
68. It is also important to have a clearer picture of
judicial corruption in order to be able to combat it more effectively.
I believe there is a need to obtain reliable information through
69. There are, of course, numerous statistics already, including
those collected every year by Transparency International for its
Global Corruption Barometer. These statistics tend to be fairly
general, however. They provide a measure merely of the impressions
and perceptions of the persons interviewed and are not of an official
70. It would be helpful to have statistical information on prosecutions
and convictions of members of the judiciary in Council of Europe
member states. When correlated with the other statistics referred
to above, they would give an idea of how vigorously (or otherwise)
member states are tackling the root of the problem. 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.
71. Perhaps an existing Council of Europe body could carry out
a study to this effect. In order to be of value, it would need to
be updated every two years. Such information would certainly be
of use to the Group of States against Corruption (GRECO), which,
in its first and second evaluation rounds, attaches particular importance to
the independence of the judiciary from the political authorities
and other sources of influence.
72. I am somewhat concerned here by an initiative under way at
the European Commission. Following the European Council decision
in 2008 on the conclusion, on behalf of the European Community,
of the United Nations Convention against Corruption (2008/801/EC),
the Communication from the Commission to the European Parliament
and the Council of 10 June 2009 concerning the Stockholm Programme
calls for “a periodic evaluation of the efforts made by the Union
and the member states” to combat corruption. I believe that, were
it to win the support of European Union member states, such an initiative
would inevitably lead to duplication of the work that is already
being done by GRECO.
73. I would ask the Committee of Ministers to encourage closer
co-operation between GRECO and the relevant European Union institutions,
including through “participation of the European Community” in the
work of GRECO, as envisaged in the GRECO Statute, in order to avoid
overlap and promote synergies.
74. The preventive measures should also include effective protection
for whistle-blowers, who are a risk factor and hence a deterrent
for anyone tempted to engage in corruption. Our colleague, Pieter
Omtzigt (Netherlands, EPP/CD) has made some proposals along these
lines which I fully endorse.
According to the 2008 Eurobarometer report on the
attitudes of Europeans towards corruption,
the majority of European
Union citizens do not consider that there are enough successful
prosecutions in their country to deter people from giving or taking
bribes (58%). In Finland, 49% of those interviewed thought that there
were enough, compared with just 17% in Slovenia.
As pointed out by GRECO in some of its reports, “justice is
not only to be done in a correct way, it must also be seen to be
done in such a way in order to change the public perception …”,
particularly in countries where
the public has no confidence in the justice system.
6.4. Concrete proposals
GRECO has highlighted several fields of major importance
for judicial independence and therefore for possible judicial corruption:
- procedures for selecting and
- systems for promoting or assessing judges;
- deficient working conditions (including insufficient remuneration);
- procedures for selecting and appointing prosecutors;
- systems for promoting or assessing prosecutors;
- procedures for dismissing prosecutors.
78. The TI report singles out four recurrent problems in the countries
surveyed: 1. appointment of members of the judiciary; 2. terms of
office and working and salary conditions; 3. responsibility and
disciplinary measures; and 4. transparency.
79. TI also notes that insufficient account has been taken of
these elements in the various judicial reforms over the last two
decades, which have mainly concentrated on the administrative aspects
During the hearing before the committee, the chair of GRECO,
Mr Drago Kos, outlined the following measures which should be introduced
to effectively combat judicial corruption:
- members of the judiciary should receive remuneration appropriate
to their work in order to minimise the risk of being tempted to
secure additional income;
- recruitment, promotion and dismissal procedures for judges
and prosecutors must be clear, transparent, apolitical and non-partisan
– in this respect, the European
Charter on the Statute for Judges envisages the intervention
of an authority independent of the executive and legislative powers
for every decision affecting the selection, recruitment, appointment,
career progress or termination of office of a judge;
- judges’ and prosecutors’ terms of office must be sufficiently
long and not subject to any external evaluation of their work;
- the absolute independence of judges’ and prosecutors’
activities from any undue interference must be guaranteed;
- impartial supervisory mechanisms must be introduced to
ensure appropriate management of courts and public prosecutor's
- specific objective mechanisms for ensuring responsibility
on the part of judges and prosecutors must be developed without
undue interference in their independence or impartiality, while
guaranteeing protection for plaintiffs from reprisals and providing
for effective sanctions;
- professional and ethical standards for judges and prosecutors
must be devised, accompanied by effective monitoring mechanisms;
- judicial immunities must not constitute excessive obstacles
to the effective prosecution of corrupt members of the judiciary;
- the judicial authorities must have sufficient human and
- some degree of judicial specialisation is required;
- it is vital to provide the judiciary with specific training
in corruption and ethics;
- the judicial authorities must have ready access to the
expert knowledge they need;
- judges and prosecutors must remain aware at all times
of the importance of their role in a modern society.
81. In order to be effective, the fight against corruption must
comprise investigations, prosecutions and, ultimately, convictions.
Criminals must always be punished in accordance with the law.
82. Accordingly, the European Charter on the Statute for Judges
enshrines judges’ “right of appeal”. Any judge who considers that
his or her independence, or that of the legal process, is threatened
must be able to refer the matter to an independent body.
83. Traditions also play a very important role. In a culture where
corruption is not accepted at all, deviating behaviour becomes more
difficult. Such behaviour also carries with it a higher risk, and
is therefore less common, when whistle-blowers are accorded due
respect and protection.
84. It is necessary to have specialised police forces, examining
magistrates and experts, all receiving appropriate training and
having sufficient resources to ensure that effective inquiries be
85. However, while the legislation exists to prosecute criminals,
there also has to be a political will to implement it. Where corruption
is concerned, especially corruption of the judiciary, this political
will must be at the highest possible level.
It is absolutely vital to eradicate the phenomenon
of judicial corruption as a fertile breeding ground for impunity.
87. The key to such eradication is a genuine political will. We
have had enough of meaningless action plans and declarative promises:
judicial and political corruption nurture and reinforce one another.
Where the judicial system is corrupt, it is unlikely that politicians
using threats and bribery to escape justice will ever be convicted. Such
a system excludes de facto the honest candidates who might wish
to tackle the real roots of the problem. Whereas if one is proud
of one’s profession and its high standards, there is less temptation
88. We must face the facts, the damning reports: judicial corruption
is deeply rooted in several Council of Europe member states, with
the approval of prominent players in the executive bodies of these
states (who benefit from the situation).
89. The Council of Europe can, and must, play a role in stepping
up the supervision of the phenomenon in its member states, and the
Parliamentary Assembly in particular must exert the requisite political
pressure on the political organs of the countries in question. The
Assembly must step up its monitoring activities in this field because
the known cases of corruption are by definition only the tip of
90. Nor can we turn a blind eye to judicial corruption in member
countries which do not, on the face of it, feel concerned by this
problem. Corruption can take a wide variety of forms which appear
quite harmless and banal but are in fact highly pernicious. I would
urge all Council of Europe member states to engage in self-criticism and
overcome their taboos by initiating comprehensive surveys of corruption
within their own judicial systems.
91. Lastly, when a judicial system is corrupt, the whole democratic
system rots with it. As Transparency International concludes in
its report, “it is difficult to exaggerate the negative consequences
of a corrupt judicial system”, so overwhelming is its capacity for
eroding an entire state.
* * *
Committee on Legal Affairs and Human Rights
Reference to committee: Doc. 11330, Reference 3368 of 1 October 2007
Draft resolution and draft recommendation adopted
unanimously by the committee on 11 September 2009
Members of the Committee:
Mrs Herta Däubler-Gmelin (Chairperson),
Mr Christos Pourgourides,
Mr Pietro Marcenaro, Mr Rafael
Huseynov (Vice-Chairpersons), Mr José Luis Arnaut,
Mrs Meritxell Batet Lamaña,
Mrs Marie-Louise Bemelmans-Videc, Mrs Anna Benaki-Psarouda, Mr Petru
Călian, Mr Erol Aslan Cebeci (alternate: Mr Mevlüt Çavuşoğlu), Mrs Ingrida Circene, Mrs Ann Clwyd, Mrs Alma Čolo, Mr Joe Costello,
Mrs Lydie Err, Mr Renato Farina,
Mr Valeriy Fedorov, MrJoseph Fenech Adami, Mrs Mirjana
Ferić-Vac, Mr György Frunda,
Mr Jean-Charles Gardetto,
Mr József Gedei, Mrs Svetlana Goryacheva, Mrs Carina Hägg, Mr Holger Haibach,
Mrs Gultakin Hajibayli, Mr Serhiy Holovaty,
Mr Johannes Hübner, Mr Michel Hunault, Mrs Fatme Ilyaz, Mr Kastriot
Islami, Mr Želiko Ivanji, Mrs Iglica Ivanova, Mrs Kateřina Jacques,
Mr András Kelemen, Mrs Kateřina Konečná, Mr Franz Eduard Kühnel, Mrs Darja Lavtižar-Bebler,
Mrs Sabine Leutheusser-Schnarrenberger, Mr Aleksei Lotman, Mr Humfrey
Malins, Mr Andrija Mandić, Mr Alberto Martins, Mr Dick Marty, Mrs Ermira Mehmeti, Mr Morten
Messerschmidt, Mr Akaki Minashvili,
Mr Philippe Monfils, Mr Alejandro Muñoz
Alonso, Mr Felix Müri,
Mr Philippe Nachbar, Mr Adrian Năstase,
Ms Steinunn Valdís Óskarsdóttir, Mrs Elsa Papadimitriou, Mr Valery
Parfenov, Mr Peter Pelegrini, Mrs Maria Postoico, Mrs Marietta de Pourbaix-Lundin, Mr Valeriy
Pysarenko (alternate: Mr Hryhoriy Omelchenko),
Mr Janusz Rachoń, Mrs Marie-Line
Reynaud, Mr François Rochebloine, Mr Paul Rowen,
Mr Armen Rustamyan, Mr Kimmo Sasi, Mr Fiorenzo Stolfi, Mr Christoph
Strässer, Lord John Tomlinson, Mr Joan Torres Puig, Mr Tuğrul Türkeş, Mrs Özlem Türköne, Mr Viktor Tykhonov (alternate:
Mr Ivan Popescu), Mr Øyvind Vaksdal, Mr Giuseppe Valentino,
Mr Hugo Vandenberghe, Mr
Egidijus Vareikis, Mr Luigi Vitali,
Mr Klaas de Vries,Mrs Nataša Vučković,Mr
Dimitry Vyatkin, Mrs Renate
Wohlwend, Mr Jordi Xuclà i Costa
NB.: the names of the members who took part in the meeting
are printed in bold
Secretariat of the committee:
Mr Drzemczewski, Mr Schirmer, Ms Szklanna, Ms Heurtin