CORRUPTION IN THE JUDICIARYJosip 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.

IndependenceJudicial 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 Number per 100.000

AustriaGermanyFranceEnglandItalyCroatia

1.73220.901 6.240 2.195 6.720 1.819

5.3325,3010,374,22

11,7240,99

Number of judges.1

Country Number Number per 100.000

BulgariaCzechHungaryPolandSloveniaCroatia

1.550 2.716 2.757 7.771 774 1.819

19,7626,6227.1820,3339,4140,99

Number of judges.2

Country Number per 100.000

IrlandFYRMSerbia/MNSwedenSloveniaCroatia

3,0431,7433,3418,9439,4140,99

Nations in Transition: Judiciary1997 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

Excessive Taxes and Regulations

Street Crime/Theft/Disorder

Organised Crime/Mafia

Malfunctioning JudiciaryPolicy Instability

Inflation

Financial Instability

Croatia

Eastern Europe Average

Former Soviet Union Average

Governance Obstacles to Business

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 .

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).

Based on relative rating of each obstacle by the country's enterprises

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/).

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.

Korupcija (WB)

86

84

84

82

77

76

75

64

52

49

30

0 10 20 30 40 50 60 70 80 90

Ukraine

Russia

Slovakia

Croatia

Slovenia

Bulgaria

Romania

Hungary

Czech Republic

Poland

Austria

We live in a corrupt state.„positive answers“

%CEE AVERAGE: 69%

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 decision-making 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 = empiricalThe 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”.