Topic Guide: Judicial Corruption

All sectors of society rely on the courts to sanction corrupt officials, politicians, citizens and businesspeople, who steal resources and weaken integrity in public and private life. When the judicial system is corrupt, justice cannot be done.

The key issues in judicial anti-corruption reform centre around balancing the wide discretionary power afforded to judges to enable them to act independently and the need for oversight mechanisms to hold judges to account. A challenge for anti-corruption reformers is identifying the particular opportunities for judicial system actors to act corruptly, that is, identifying the risks of corruption within judicial institutions.

Judicial anti-corruption reformers must find the correct balance between demanding accountability of judicial actors and protecting their independence. Judicial independence should be safeguarded so that political actors and other powerful interests cannot influence judicial decision making. Judicial independence requires not just independence in the constitutional sense, that is, the separation of powers between the three branches of government (executive, legislature and judiciary), but also the personal independence of judges so that they are free to decide cases based on the application of the rule of law.

However, judges and the courts deliver a service to society – justice – and, like other service providers, should be accountable for their decisions and actions. Judges are accountable for their decisions to higher courts, but their wide discretion in decision making can result in “selective justice”, that is, not applying the same standards to every case, and can also veil corruption.

Transparency tools may not always be appropriate for the judiciary since transparency and accountability must be balanced with the need for confidentiality and privacy. Closed courts are sometimes necessary to, for example, protect the identity of victims or witnesses, protect the details of ongoing investigations or protect national security. Similarly, privacy rights may trump demands for the disclosure of information.

Carrying out successful reforms depends on countering the particular corruption risks associated with the roles of judicial system actors within the judiciary.

Judicial System Actors

Judicial system actors include officials involved in criminal and civil proceedings such as judges, jury members and laypersons who assist judges, prosecutors, defence lawyers and lawyers acting in civil cases, court clerks and administrators as well as security staff. Other actors vulnerable to corruption when they interact with the judiciary include victims, witnesses and expert witnesses as well as NGOs that provide court services and members of the media who report cases.

There are various forms of corruption that affect judicial system actors in fulfilling their respective roles:

1. There may be political interference to influence the outcome of a civil case or a criminal trial.

2. Judicial system actors, as well as victims and witnesses, may be bribed to influence the process and outcome of court cases.

3. Judicial system actors may face extortion, that is, they are coerced to act corruptly under the threat of violence or the release of damaging information.

4. Judicial system actors may engage in nepotism to enable close contacts or family members to benefit from any largesse it is in their discretion to distribute, such as awarding procurement contracts for court security services.

5. There may be a misuse of public funds and resources that result in trials being delayed or collapsing.  

Risks of Corruption in the Judiciary

There are key areas where judicial system actors may be exposed to or engage in these forms of corruption.

Management of courts.

In the management of courts, there is a risk that political actors apply pressure to judges and court officials to act in their interests, for example, by withholding or manipulating court budgets or interfering with processes to select or discipline judges and other court personnel. 

Criminal proceedings.

In criminal proceedings, there are risks that political actors or higher judges direct courts on how to rule. Court clerks or other court administrators may be bribed to abuse their power in case management, such as by causing delays to the scheduling of cases or losing evidence. Prosecutors and defence lawyers might be directed to mishandle cases. Private parties or political actors could tamper with juries or laypersons assisting judicial decision making. Witnesses and victims may be threatened or bribed by political officials or defence lawyers. Political authorities or higher courts might hamper the enforcement of judgments.

Civil proceedings.

There are similar risks in civil proceedings when court clerks and other court administrators can be bribed to abuse their powers. Risks include clerks charging unauthorised fees for court services, accepting bribes to lose files or giving access to judicial decisions before they are scheduled for release. Political authorities could direct judges’ decisions or judges could solicit bribes for favourable judgments. Lawyers could accept bribes to mishandle cases.

Enforcement of judicial decisions.

At this stage, there are risks that lawyers or other parties negotiate with judges, bailiffs or other enforcement agents so that sanctions are not enforced. Court appointed experts who undertake evaluations of assets could be bribed to alter their estimations. Government actors could refuse to comply with judicial orders.