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CENTRE OF EXPERTISE IN JUDICIARY @ TRANSPARENCY INTERNATIONAL ROMANIA

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1.1

Corruption and JudiciaRy

What is judiciary?

The specific purpose of this Guide has been informed by the model developed by TI as part of the

Advocacy Toolkit that accompanied the Global Corruption Report 2007

3

. This model identifies three

interconnected spaces – the judiciary, the wider justice system and the societal context in which they

operate.

The

judiciary

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is the branch of the state powers tasked with ensuring equal justice through

interpreting

and applying the law

in the name of the state through effective dispute resolution. It includes the

judicial branch responsible for administering justice through a system of courts of law and the people

who operate within it and who have an active role in the management of corruption cases, namely

judges and court officials. In some jurisdictions, prosecution services and people who operate in it,

namely prosecutors, judicial police and judicial experts, are also part of the judiciary, whereas, in

other jurisdictions the prosecution service is not part of the judiciary but enjoys independence or

operational guarantees similar to that of the judicial service

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.

This Guide will focus on the judiciary as being the system of courts of law and the people who operate

within it, as well as the prosecution service and the people who operate within it, irrespective of being

formally part of the justice system or just enjoying similar operational guarantees.

What is judiciary related corruption?

Transparency International defines corruption as “the abuse of entrusted power for private gain”

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.

“Private gain” must be interpreted broadly to include gains not only accumulated by the person in

question, but also by his/her family members, close friends, political party, favourite charity, hometown,

corporation or other entity in which the official or the official’s family or close friends have a financial

or social interest. Judiciaries face corruption in two different forms.

Judicial corruption

Judiciaries at large are themselves vulnerable to two forms of corruption, irrespective of the cases

they deal with - civil, administrative, labour, family or criminal ones.

(1) One form of judicial corruption comes in the form of bribery or intimidation of official actors such

as judges, court staff or prosecutors. Examples of such situations may range from paying off court

clerks to misplace documents in order to derail court proceedings, bribing the police to lose evidence,

blackmailing prosecutors to prevent them from initiating proceedings or threating judges or their

families to influence decisions.

(2) Political interference in the judiciary by political actors ismanifest through, for example, manipulation

of judicial and prosecutorial appointments and removals, manipulation of judicial, court staff and

prosecutors’ salaries and conditions of service or reassigning judges and prosecutors perceived as

problematic away from politically sensitive cases and allocating those cases to more pliable judges

or prosecutors. Political interference can also occur when judges or prosecutors are permitted to hide

behind outdated immunity provisions or distorted notions of collegiality, displaying obvious contempt

of the law.

3. Combating Corruption in Judicial Systems Advocacy Toolkit, p. 59

http://www.u4.no/recommended-reading/

transparency-international-advocacy-toolkit-combating-corruption-in-judicial-systems/

4. Combating Corruption in Judicial Systems Advocacy Toolkit, p. 19,

http://archive.transparency.org/global_priorities/

other_thematic_issues/judiciary/tools;

http://www.britannica.com/EBchecked/topic/307555/judiciary

5. Art. 11, UN Convention against corruption

6. Transparency International, The Anti-Corruption Plain Language Guide, 2009, p. 14,

http://www.transparency.org/

whatwedo/pub/the_anti_corruption_plain_language_guide