While the way judicial corruption operates differs widely depending on the country, the legal system and the socio-political context, the common factor is that it violates universally recognised human rights. When corrupt, the judicial system – responsible for protecting these rights – becomes the instrument oppressing them.[1] It is the poor and disadvantaged who suffer disproportionately from judicial corruption due to their marginalised status and inability to pay bribes.

Fair Trial

When the independence and integrity of the judiciary is compromised the citizen is left at the mercy of a system which does not guarantee the protection against the offences of power by the state. Ultimately citizens’ trust in the democratic institutions of the state rely on the knowledge that if need be, they are entitled to a fair trial; recognised by all major human rights treaties as a fundamental, non-disputable right. It can be seen to include the following fundamental aspects:

▪ presumption of innocence of the accused;

▪ guaranteed hearing within a reasonable time;

▪ right to a qualified lawyer;

▪ right to contest evidence in front of an independent and impartial judge.

Corruption in the judiciary negatively affects the implementation of the principles of fair trial and erodes the rule of law. Without an independent institution responsible for administering justice, a culture of human rights cannot prevail. While any attempt to hierarchically assess fundamental rights is pointless as different rights are mutually enforcing, the right to fair trial can be seen to carry a specific importance as it is the legal instrument through which other rights can be secured.

Access to Justice

In recent years the notion of access to justice has gathered increasing attention, especially in regards to judicial reform. Processes of judicial reform around the world have strengthened judiciary’s role in creating transparency, holding governments accountable for their decisions as well as guaranteeing the separation of powers between the different branches of the government. All these are prerequisites for an environment promoting access to justice: the capacity of (usually) disadvantaged groups of citizens to gain access to courts (or alternative resolution mechanisms) by removing various institutional as well as corruption related barriers within the legal system. These barriers – be it a court official delaying a case in order to solicit petty bribes from a litigant, or a judge influenced by the interests of a multinational company refusing adversely affected groups the right to initiate a court case – effectively deny access to a fair trial.

International Conventions

The recognition that independent judiciary is the prerequisite for rule of law is to be found in nearly all major human rights conventions. The Universal Declaration of Human Rights (UDHR) states that certain rights are to be protected without distinction of any kind. Amongst these fundamental rights, Article 7 of the Declaration affirms that, “All are equal before the law and are entitled without any discrimination to equal protection of the law”. This right is further elaborated in the International Covenant on Civil and Political Rights (ICCPR).

In regards to corruption as a factor undermining the independence of the judiciary and therefore the doctrine of equality before the law, the United Nations Convention Against Corruption (UNCAC) adopted by the General Assembly in 2003 recognises the deforming effect which corruption can inflict on the judicial system.[2] Similar documents with specific reference to corruption in the judiciary, such as the Bangalore Principles of Judicial Conduct have been drafted at earlier times.

Unfortunately these conventions – although many of them part of international law – remain largely unenforced even in countries which have ratified them. Efforts to tackle corruption, especially in regards to higher judicial officers are difficult. In order to guarantee the independence of the judiciary, some members are granted large degrees of legal immunity in order to protect them from outside influence. This necessary precautionary measure (judicial immunity) can be misused by judges to effectively achieve impunity. In many countries it can be extremely difficult to impeach a judge, even despite clear evidence of corruption.

The concept of fair trial becomes invalid when the pressure imposed on the judiciary by politicians, society and economic motivations compromise judiciary’s independence and integrity, be it due political and/or economical interests or petty bribery of court personnel. The point at which the undue influence tips the scales of justice cannot be objectively measured; there often exists no straightforward and easily provable causal link between a particular verdict and a perceived reward for a member of the judiciary. For the victim however, the results are tangible. The absence of fair legal procedures leads to arbitrary use of judicial power, which in turn erodes all other fundamental rights.

More often than not the victim of this process belongs to a disadvantaged community with already limited means of access to justice. It is therefore crucial that the transparency of the judiciary be continuously scrutinized, and when found to be lacking, enforced with particular momentum in order to prevent the weakest sections of the society to bear the costs of corruption in the judicial system.

[1] As Mary Robinson, former United Nations High Commissioner for Human Rights points out, “It can be said that the way in which justice is administered is a key benchmark of a country's commitment to human rights”.

[2] UNCAC, Article 11, paragraph 1 states: “Each State Party shall, in accordance with the fundamental principles of its legal system and without prejudice to judicial independence, take measures to strengthen integrity and to prevent opportunities for corruption among members of the judiciary. Such measures may include rules with respect to the conduct of members of the judiciary.”

UNCAC, Article 11, paragraph 2 states: “Measures to the same effect as those taken pursuant to paragraph 1 of this article may be introduced and applied within the prosecution service in those States Parties where it does not form part of the judiciary but enjoys independence similar to that of the judicial service”.