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CENTRE OF EXPERTISE IN JUDICIARY @ TRANSPARENCY INTERNATIONAL ROMANIA

10

Remedies

Implementing international principles and standards

Aware that the protection of all human rights depends upon the proper administration of justice, the

international community has recognized in “international and regional human rights instruments as

fundamental the right of everyone to due process of law, including to a fair and public hearing by

a competent, independent and impartial tribunal established by law”

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. Knowing that human rights

protection is a global challenge reliant upon upholding national judiciaries, the international community

has also developed a series of guiding principles and standards that should endow Governments with

a sound foundation for building robust judiciaries.

If these standards were appropriately implemented into the national legal framework and judicial

practice, judiciaries around the world would become more independent, impartial and accountable.

Judiciaries would also become more efficient both in up-holding individual rights and in sanctioning

corruption

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. However, it is important to note that international organizations’ experiences in promoting

such standards and encouraging judicial reforms have proven that long term change is elusive if the

process does not incorporate meaningful participation and support of the national stakeholders

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or

fails to adapt national standards to recognize more local legal traditions

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.

This Guide’s Second Chapter compiles principles and standards incorporated from many global or

regional legal instruments, drawing on their common denominators. The Second Chapter is intended

to outline the requirements for a national judiciary to become robust enough to effectively sanction

corruption, while also observing the human rights of the perpetrators.

Considering the variety of national judiciary models, whether they are rooted in a common law, civil

law, customary law or a hybrid system, these standards have the role of providing a reference and

inspiration for national advocacy efforts, to which Transparency International encourages as many

stakeholders as possible to contribute. Civil society may also use these standards as benchmarks

against which they can hold their national judiciaries accountable. Where the standards here listed

are not convergent with the national judiciary model, complying with the principles will ensure the

robustness of the judiciary, while national stakeholders will have to identify the appropriate solutions

to satisfy the requirements of the principle.

Collective efforts to close the gaps and loopholes

As already mentioned, meaningful participation and support by national stakeholders are crucial for

reforming judiciaries and keeping them accountable for their successes and failures in sanctioning

corruption. To substantiate stakeholder participation in an effort to strengthen their national judiciaries,

a coherent analysis of the types, levels, locations and

remedies

of the gaps and loopholes affecting

the performance of the criminal justice systems is essential. Stakeholder participation in this analysis

is also part of their contribution to the advocacy efforts: changes determined by the judicial officials

themselves and peer monitoring are key to sustainable changes.

Building on TI`s experience in working with the judiciaries, the Third Chapter of this Guide provides

an inventory of gaps and loopholes that may affect each of the phases of the criminal justice

system, together with recommendations for possible remedies, showing that they usually exceed

the international reference framework. TI aims at developing a dedicated Scorecard tool to provide

the national judicial stakeholders with an instrument to design knowledge based advocacy plans,

with concrete advocacy targets to close the identified gaps and loopholes in their jurisdiction. This

instrument will be part of the second generation of practical tools and approaches to facilitate the

work in the sector and support the existing advocacy efforts.

8. Strengthening Judicial Integrity against Corruption, Global Programme against Corruption Conferences, Vienna,

March 2001, page 3

9. Guidance Note of the Secretary-General, UN Approach to Rule of Law Assistance, April 2008, point B – Framework

for strengthening the rule of law

10. Guidance Note of the Secretary-General, UN Approach to Rule of Law Assistance, April 2008, point A 5

11. Strengthening Judicial Integrity against Corruption, Global Programme against Corruption Conferences, Vienna,

March 2001, page 7