To hide or not to hide? Disclosing finances and interests

Dr. Tilman Hoppe, LL.M., is a former judge, who supported asset declaration reforms in about 40 countries through projects by the Council of Europe, European Union, OECD, UNODC, World Bank, and others.

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In many countries all over the world, judges have to disclose their finances and interests, often to the public and accessible online. The disclosures bring along an administrative burden for judges: they need to fill in a comprehensive set of data for themselves and for their immediate family members; they need to regularly update the data, ideally online, otherwise on paper; and, they need to accept that in most cases these asset declarations are available to the public online, with only sensitive data being redacted, such as addresses, bank account numbers, or number plates. This burden raises three questions:

• Is it legally justified that asset declarations invade the privacy of judges for the sake of integrity?
• Is there at least anecdotal evidence that asset declarations actually contribute to fighting corruption in the judiciary?
• Are there any risks for the independence of judges stemming from asset declarations?

As for the legal justification, already three decisions of international courts firmly support the submission, verification, and publication of asset declarations in the judiciary. As early as 2005, the European Court of Human Rights (ECtHR) found the online availability of asset declarations – including information on family members – to conform with Art. 8 (private and family life) of the European Convention on Human Rights (ECHR).¹

While this decision concerned public officials in general, another decision by the ECtHR in 2021 specifically targets judges and also addresses the question of verifying the data included in asset declarations.² According to the Court, Art. 8 ECHR does not apply to checking inexplicable wealth of a public official, as such checks only focus on “the individual’s inability to justify the lawfulness of the source used for their acquisition […] and to ensure public trust in his or her integrity” (§ 362). Based on such a financial check, going back decades in time, the Court regarded it as justified that a constitutional court judge had been dismissed.

Most recently, in August 2022, the Court of Justice of the European Union (CJEU) decided that it was unjustified to publish the data of family members of a manager who was employed at a “non-governmental organisation, [carrying out] its activity independently of the public authorities” but “vested with administrative powers”.³ Conversely, the CJEU accepted the publication of data of family members if asset declarations concerned proper public servants, to which the General Advocate counts inter alia “persons elected to office, State officials, judges”.

As for the effectiveness of asset declarations, one must first note that often systems are in place, which are ineffectively designed or not enforced. For example, in Albania, the oversight body had lacked “the capacity to follow up and verify the declarations”;⁴ the ECtHR therefore noted in 2021 that “prior verification of declarations of assets had not been particularly effective”.⁵ However, where systems are well-designed and declarations become available for scrutiny by an oversight body, journalists, and NGOs, they start making a difference. The dismissal of judges from the highest courts in countries across the world is evidence of the impact asset declarations can have. Asset declarations are also effective when assessing the integrity of judges seeking higher judicial office or of candidates for judicial self-administration bodies.⁶ For example, an integrity review body vetoed 42 candidates for the new Ukrainian High Anti-Corruption Court, based on concerns of their financial or professional integrity.⁷

Without integrity, there is no independence of the judiciary. Asset declarations are therefore not a risk to an independent judiciary, but defend it. They help prevent integrity violations, nurture public trust in honest judges who have nothing to hide in terms of financial or other influences, and most importantly, they are essential for filtering out the “rotten apples”, who amass inexplicable wealth or who decide on cases in which they have obvious private interests. As for its independence, the judiciary will always have the last word: Any sanction to a judge based on an asset declaration, will only become effective if approved by a court of law, and thus by the judiciary itself.

All in all, fighting corruption in the judiciary cannot be imagined without asset declarations, as also envisaged in the United Nations Convention against Corruption. Therefore, decisions by national constitutional courts in many countries have propped up this cornerstone of judicial integrity systems, and the Venice Commission has referenced asset declarations in its Rule of Law Checklist as one of the few “specific measures in place against corruption in the judiciary”.⁸