CORRUPTION IS A MAJOR HUMAN RIGHTS PROBLEM SAYS COE HUMAN RIGHTS COMMISSIONER HAMMARBERG
eGov monitor
Council of Europe
Monday, 5 October, 2009 – 17:46
In several European countries there is a widespread belief that the
judiciary is corrupt and that the courts tend to favour people with
money and contacts. This perception may sometimes be exaggerated, but
it should be taken seriously. No system of justice is effective if it
is not trusted by the population. Even worse, there are indications
to show that people’s suspicions are in some cases well justified.
During my visits to member states of the Council of Europe I have
often heard complaints about corruption affecting key components of
the justice system: the judiciary, the police and the penitentiary.
Such allegations may be part of party political propaganda and are
in many cases difficult to verify. Still, it has become clear to
me that corruption in the justice system is a serious problem in
several European countries – not only as a perception, but also as
a concrete reality.
Corruption in the justice system often goes hand in hand with political
interference. Ministers and other leading politicians do not always
respect the independence of the judiciary and instead give underhanded
signals to prosecutors or judges on what they are expected to deliver.
The distortive effect of such practices is even worse in countries
where there are close links between the political leaders and big
business. This is where greed really tends to triumph over justice.
Corruption threatens human rights and, in particular, the rights of
the poor. Policemen are badly paid in several countries and some of
them try to add to their income through asking for bribes; the result
is that people without money are treated badly. I have met prisoners
who have had no family visits because the relatives could not pay
the unofficial fee for the entry into the prison.
Sadly, there are also cases of court officials who have been influenced
by money under the ta or by other less obvious favours, like career
promises. This appears, in fact, to be one of the explanations for the
excessively drawn out trials in some cases and for the very shortcut
procedures in others.
Judges should be well paid in order to minimise the temptation for
such corrupt practices. However, a higher salary level is only one
aspect of this picture and not always effective – indeed, greed
sometimes tends to grow with income.
What is needed is a comprehensive, high-priority programme to stamp
out corruption at all levels and in all public institutions. There is
also a need to react clearly on corrupt practices in private business,
the consequences of which tend to spill over into the public sphere.
The basis has to be a concise legislation which criminalises acts of
corruption. However, such laws can in themselves hardly address all
concrete problems in this field. It is extremely difficult to define
the criminal dimension of some of the corrupt practices, such as
nepotism and political favouritism. Issues relating to ‘conflicts of
interest’ must also be assessed in their contexts. In other words, more
focused standards and effective follow up mechanisms are necessary.
Clear procedures for the recruitment, promotion and tenure of judges
and prosecutors are a must and should confirm the fire-wall between
party politics and the judiciary. The process of appointing judges
should be transparent, fair and based on merit. Requirements concerning
the integrity of judges should be part of their training and defined
clearly and early in the recruitment process.
Codes of conduct could serve as useful tools to enhance the
integrity and accountability of the judiciary. The standards should
regulate behaviour in office, but also for outside activities and
their remuneration. Independent disciplinary mechanisms should be
established to deal with complaints against court officials. They
should be able to receive and investigate complaints, protect the
complainants against retaliation and provide for effe s.
Relevant recommendations have been presented by the Group of States
against Corruption (GRECO), a body initiated by the Council of
Europe to fight bribery, abuse of public office and corrupt business
practices. GRECO has also developed a system for regular review
of anti-corruption measures among its participating member states;
its reports have encouraged important reforms on a national level.
Legally binding norms for measures against corruption are set
by a couple of important international treaties which should be
used as inspiration for national action. The Council of Europe has
adopted the Criminal Law Convention on Corruption and the Civil Law
Convention on Corruption which entered into force in 2002 and 2003
respectively. There is also the United Nations Convention against
Corruption which entered into force in 2005.
One aspect stressed in these treaties is the need to protect those
individuals who report their suspicions in good faith internally or
externally. Such whistleblowers have too often been hit by retaliation
– dismissals or worse – which in turn may have silenced others who
have had grounds on which to report misdemeanours. Even if such overt
sanctions are prevented there remains a problem of how to hinder more
subtle forms of retribution, for instance non-promotion or isolation.
Many corruption scandals have been exposed by the media and freedom
of expression is, indeed, key in this struggle. This is one reason
why it is essential to promote freedom and diversity of the media and
to protect the political independence of public service media. The
European Court of Human Rights has recognised that the press is one
of the means by which politicians and public opinion can verify that
judges are discharging their heavy responsibilities in a manner that
is in conformity with the task entrusted to them.
It is also important that Freedom of Information legislation
promotes governmental transparency. The public should, in principle,
have access to all information which is handled on their beh
Confidentiality is, of course, necessary, for instance in order to
protect privacy and personal data, but should be seen as exceptional
and be justified. Though progress on this is being made in Europe,
transparency is far from the general rule.
Not only should governments be passively transparent, they have
an obligation to ensure that the public has effective access to
information. The European Court of Human Rights has emphasised that the
public must have information on the functioning of the judicial system,
which is an essential institution for any democratic society. "The
Courts, as with all other public institutions, are not immune from
criticism and scrutiny".
When reporting on Ukraine I had to stress the importance of
such transparency, ‘With the exception of the judgments of the
highest courts, only a small percentage of judicial decisions are
published. Accurate and reliable records are an exception’.
Parliamentarians could play a particularly important role in the fight
against corrupt practices. They should certainly set a good ethical
example themselves and openly declare their income and capital assets,
as well as all relevant activities carried out on the side, connections
and interests. Further, they could act as watchdogs on the risk of
corruption within the government administration and ask questions
which others may find difficulty in answering. They could ensure that
legislation and oversight procedures are in place and functioning.
Some of the non-governmental organisations already play an important
role in the struggle against corruption. This has now been recognised
in, for instance, Ukraine and Serbia. On an international level
the Berlin-based Transparency International (TI) has made major
contributions and also managed to encourage the World Bank to take
the problem more seriously. TI has now national sections in several
countries and there are also other groups on a national level who
expose bad practices and seek reforms against corruption.
Ombudsmen and other independent n rights structures are in some
countries actively working against undue influence and other corrupt
practices. Examples are the Public Defenders in Georgia and Armenia
who have described how poor and destitute people are damaged by
such tendencies. In Latvia the mandate of the Ombudsman specifically
includes work on violations against standards of good governance.
The poor need legal aid, not pressure to pay bribes. They need proof
that everyone is equal before the law. They need a system of justice
that is fair and unbiased. This is their right.