Building a comprehensive risk management in the judiciary 

Aneta Arnaudovska, PhD, is a Senior Anti-corruption Advisor at the Secretariat of the Regional Anti-corruption Initiative (RAI) in South Eastern Europe.

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The states in the South Eastern European region have recognized the importance of conducting an in-depth analysis in the sectors most prone to corruption. According to sources analyzed for the Western Balkans and Moldova, the judiciary is among the sectors most prone to corruption. [1]

In the last decade, the associations of judges and the creators of the judicial policies have been focusing on the questions of promoting independence or ethical issues, but generally little attention has been paid to the issues of corruption in the judiciary. As a result, there is often an absence of streamlined sectoral anti-corruption and risk management policies in the judiciary, a lack of integrity and corruption measurement practices, and insufficient communication with relevant stakeholders, media and the public. 

Corruption risks in the judiciary should be identified in areas in which judges exercise discretion. Judges should have unfettered freedom to decide cases impartially, without pressure and in accordance with the law and the facts. Most frequently, external pressure is canalized through internal judicial channels, such as judicial councils, superior courts, presidents or the judges themselves. External pressure can also take a form of a social pressure by peers or friendly relations among judges, with judges giving and receiving favours due to belonging to the same social group - judicial community. External pressure can also come through negative comments from the executive branch proposing measures such as general re-election and vetting of all judges, which represents a direct pressure on judges.

The main question is how to draw the line between, on one hand, professional mistakes and breaches of principles of ethics and conflicts of interest and, on the other hand, judicial corruption. The behaviour and activities that could be considered and perceived as corruption risks are twofold – inherent risks (which are identified within the judiciary as well as at the level of individual judges, court presidents or self-governing bodies) and external risks (which cannot be influenced by judges).

As for the inherent risks on the part of the judiciary and individual judges, conduct that may give rise to the suspicion of corruption includes the failure to comply with the requirements of a fair trial, deprivation of an adequate time for preparation of the defence (hasty trial) under political pressure, deliberate absence of legal reasoning, questionable sentencing practices, manipulation with asset declarations, non-reporting of gifts, accepting hospitality, postponing the appellate procedures until the publication of the elections results, judicial promotions after concluding politically sensitive cases, etc.

Moreover, there are other risks to judicial corruption from court presidents, such as deliberate frequent changing of the composition of chambers, manipulating the case allocation system, failing to conduct proper investigation for the allegations of the misuse of the standards of ethics and conflict of interests, or tolerating corruption among court administration and lay judges. At the level of judicial councils, there are risks of judicial corruption in the appointment and promotion processes, selective disciplinary proceedings, or the lack of regular control and review that could prevent the escalation of problems into the dismissal of judges.

As for the external corruption risks and political influence over the decision-making process, these may be identified in, for example, ambiguous legal norms governing the judiciary and its mandates, circumventing the ranked list of candidates, broad interpretation of the qualifications for judicial promotions which opens the room for arbitrariness, the amnesty granted in numerous criminal cases or the efforts to re-open politically sensitive cases through investigation committees or requests for international investigations. All of these could potentially undermine the constitutional legitimacy of the judiciary to independently decide cases in judicial proceedings.

The current situation of integrity crisis in the judiciary has resulted in a very low level of trust in the judiciary. Allegations of widespread corruption in the judiciary should be investigated but should not be addressed through drastic measures for wholesale dismissals of judges. Vetting is a measure of last resort and requires very specific conditions, as explained by the Venice Commission. [2] In this regard, the external oversight practices in the Western Balkans jurisdictions that are not regulated by law, such as trial monitoring or integrity checks, need further analysis.

A holistic approach towards building judicial integrity should be promoted in the judiciary, including through defining clear objectives and policies for: reviewing mechanisms for the implementation of conflicts of interest and asset disclosure rules; ensuring accountable self-governing bodies with transparent and reasoned decision-making process; putting in place effective case management systems, confidential complaint mechanisms and safe disclosure channels for whistle-blowers; and providing tailored training. Sectoral anti-corruption policies and measures should be developed in close coordination with national anti-corruption bodies. The critical element in any corruption risk reduction programme is leadership commitment.

The time for rebranding judicial integrity has come. The new wave of integrity should inspire the activities, decisions and behaviour of all judicial professionals at all levels.