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2.10. Kosovo*
Addendum to the report | Doc. 13824 Add. | 28 January 2016
Judicial corruption: urgent need to implement the Assembly’s proposals
Committee on Legal Affairs and Human Rights
1. Introduction
1. This document is an addendum
to the report on “Judicial corruption: urgent need to implement
the Assembly’s proposals” (rapporteur: Mr Kimmo Sasi, Finland, EPP/CD),
which was approved by the Committee on Legal Affairs and Human Rights
during its meeting in Yerevan (Armenia) on 19 May 2015, when the committee
also adopted a draft resolution and a draft recommendation on this
subject. The present addendum is aimed at updating the information
contained in the said report by making reference to the recent work
of the Council of Europe and the European Commission since May 2015,
and, to the extent possible, to recent cases of judicial corruption
in some member States of the Council of Europe. The developments
mentioned below are not exhaustive but illustrative of judicial
corruption in some countries. They highlight the urgency and relevance
of continued work on judicial corruption in order to tackle corruption
in other fields. Some of the most recurrent issues seem to be bribery
among judicial officers and the politicisation of judicial systems,
with undue political influence over judicial appointments and decisions.
2. After the adoption by the committee of the draft resolution
and draft recommendation contained in the report of Mr Sasi, the
Group of States against Corruption (GRECO) presented its annual
report and adopted it on 16 June 2015. GRECO has stressed the need
to ensure the independence of the prosecution service from the executive
branch and the need for a uniform code of conduct for prosecutors. 
It also published additional reports
(on Greece, Montenegro and Serbia) based on its fourth evaluation
round “Corruption prevention in respect of members of parliament,
judges and prosecutors”.
It also published additional reports
(on Greece, Montenegro and Serbia) based on its fourth evaluation
round “Corruption prevention in respect of members of parliament,
judges and prosecutors”. 3. The European Court of Human Rights has not rendered any judgments
related to cases of judicial corruption since Mr Sasi’s report was
adopted by the committee.
4. The Conference of the States Parties to the United Nations
Convention against Corruption, during its sixth session in November
2015, adopted a resolution which called on States Parties to:
“strengthen integrity across the entire criminal justice system, as called for in paragraph 5 (d) of the Doha Declaration on Integrating Crime Prevention and Criminal Justice into the Wider United Nations Agenda to Address Social and Economic Challenges and to Promote the Rule of Law at the National and International Levels, and Public Participation, while bearing in mind the independence of the judiciary.”
5. The United Office on Drugs
and Crime (UNODC) had already developed, in March 2015, the “Implementation
guide and evaluation framework for Article 11” to provide some guidance
on enhancing integrity in the judiciary.
2. Overview by country
2.1. Albania
6. The Assembly expressed concerns
about the widespread corruption in the judiciary in Resolution 2078 (2015) on the progress of the Assembly’s monitoring procedure
(October 2014-August 2015) and noted “the persistent and widespread
corruption at many levels of Albanian society, the continued politicisation
of the civil service and the lack of independence and impartiality
of the judiciary”. Consequently, it called on the Albanian authorities
to “implement a comprehensive reform of the justice system, including
of the prosecution service”.
7. As far as the European Union is concerned, the European Commission
issued a report, on 10 November 2015, which presented its assessment
of what Albania had achieved over the last year in view of its accession to
the European Union, and set out some guidelines for reforms. Corruption
in the judiciary is highlighted in the report as “an issue of serious
concern” and judicial reform is one of the five conditions that
Albania has to fulfil in order to gain candidate status. The European
Commission suggests that:
“Substantial efforts are needed to increase transparency and accountability, and to implement the relevant recommendations made by the Group of States against Corruption (GRECO) in its fourth-round evaluation report on corruption prevention in respect of judges and prosecutors.”
8. The report also noted the insufficient
accountability of judges and prosecutors. Moreover,
it stressed that:
Moreover,
it stressed that:“In 2015, there has been one first instance conviction of a corruption case involving a mayor and one conviction at appeal court level of a judge on corruption related grounds. The General Prosecutor’s Office dismissed a prosecutor for a corruption-related offence.”
9. In October 2015, a judge and
a lawyer at the District Court of Lezha were sentenced to four years
in prison on grounds of “passive corruption of judges and judicial
officials” and of “active corruption of judges and judicial officials”
committed in complicity in relation to a case which was being processed
at the District Court of Lezha. They were proven guilty of asking
an accused person to pay 200 000 Albanian LEK in order to avoid a
prison sentence.
2.2. Azerbaijan
10. In Resolution 2062 (2015) on the functioning of democratic institutions in Azerbaijan,
adopted on 23 June 2015, the Assembly recalled that “the independence
of the judiciary is one of the basic preconditions of the separation
of powers and of the system of checks and balances” and expressed
its concern that “the executive branch is alleged to continue to
exert undue influence” on the judiciary. It then called on the Azerbaijani authorities
“to ensure independence of the judiciary and judges, and prevent
any pressure being exerted on them” and put an end to “politically
motivated prosecutions”.
11. While the Assembly acknowledged “the recent legal amendments
reducing the length of the probationary period for judges from five
to three years”, it also recalled that “the Venice Commission has constantly
opposed probationary periods for judges and only tolerates them
under strict conditions”. It also recommended that the role of the
Judicial Legal Council in the appointment of all categories of judges
and court chairpersons be further increased. The Assembly was concerned
about dubiously motivated criminal prosecutions and disproportionate
sentences and about the use of pretrial detention as a means of
punishing individuals for criticising the government, as stated
by the European Court of Human Rights in its judgment in the case
of Ilgar Mammadov v. Azerbaijan,
in which it found a violation of Article 18 of the European Convention on
Human Rights (ETS No. 5, “the Convention”).
2.3. Bosnia and Herzegovina
12. The European Commission issued
a report, on 10 November 2015, which presented its assessment of what
Bosnia and Herzegovina achieved over the last year in view of its
accession to the European Union. It recommended improving the legislative
framework for protection of whistle-blowers. It also urged Bosnia
and Herzegovina to improve the independence and efficiency of courts.
It noted indeed that:
It also urged Bosnia
and Herzegovina to improve the independence and efficiency of courts.
It noted indeed that:“While external and internal independence and autonomy have a legal basis, there is no effective oversight for their implementation. There are no formal procedures carrying penalties against undue influence or threats to judicial independence.”
2.4. Cyprus
13. In October 2015, the Deputy
Attorney General was removed from office for inappropriate behaviour
and conflict of interest by way of a Presidential Act, which implemented
a ruling of the Supreme Judicial Council. The trial against him for corruption
and bribery is still ongoing. This said, the very fact that such
a case has come to the fore and is not covered up, is a sign that
Cyprus takes the fight against judicial corruption seriously.
The trial against him for corruption
and bribery is still ongoing. This said, the very fact that such
a case has come to the fore and is not covered up, is a sign that
Cyprus takes the fight against judicial corruption seriously.2.5. Georgia
14. In its Resolution 2078 (2015), the Assembly expressed its concern with regard to “the
systemic deficiencies in court proceedings that negatively affect
the respect for a fair trial in certain cases, including of opposition
political figures” in Georgia, and called on “the Georgian authorities
to continue the reform of the justice system, and especially of
the prosecution service, with a view to establishing a genuinely
independent judiciary”. In Resolution
2077 (2015) on abuse of pretrial detention in States Parties to
the European Convention on Human Rights, the Assembly also noted
the abusive grounds for pretrial detention in Georgia such as neutralisation
of political competitors.
15. The Venice Commission, the Office for Democratic Institutions
and Human Rights of the Organization for Security and Co-operation
in Europe (OSCE/ODIHR), and the Consultative Council of European Prosecutors
(CCPE) issued a joint opinion on the draft amendments to the law
on the Prosecutor’s Office of Georgia. The Venice Commission recommended inter alia that the draft law “must
include the necessary guarantees for the independence of the Prosecutorial
Council” and that “the nominations to the position of the Chief
Prosecutor should be based on clear qualification/experience criteria
set out in the Draft Law”. The Venice
Commission also added that “the law should include statutory provisions
concerning the nomination, promotion and dismissal of prosecutors,
as well as disciplinary proceedings brought against them”.
The Venice
Commission also added that “the law should include statutory provisions
concerning the nomination, promotion and dismissal of prosecutors,
as well as disciplinary proceedings brought against them”. 2.6. Greece
16. GRECO published, in October
2015, its evaluation report on Greece based on its fourth evaluation round.
It urged the Greek authorities to review the selection process and
the term of tenure of most senior positions of judges and prosecutors
to improve their independence from the executive. It recommended
the introduction of “a set of clear standards of professional conduct
and integrity for judges and prosecutors” and the development of
training on integrity-related issues for judges and prosecutors. It
was also concerned about the backlog of cases which creates additional
risks of undue interference for instance to accelerate procedures.
It
was also concerned about the backlog of cases which creates additional
risks of undue interference for instance to accelerate procedures. 2.7. Hungary
17. GRECO published, in July 2015,
its evaluation report on Hungary based on its fourth evaluation
round. Concerning the prosecution service, GRECO recommended that
more should be done to ensure checks and balances to prevent the
potential for malpractice and corruption. The issue of accountability
of ordinary prosecutors was also raised with the suggestion that
disciplinary proceedings in respect of those ordinary prosecutors
would benefit from being made more transparent and connected to
broader accountability. GRECO welcomed a recently adopted Code of
Ethics for judges but suggested revising it to include “guidance in
respect of conflicts of interests and other integrity related matters,
such as gifts, recusal, third party contacts, etc.” It was also
concerned by the lack of dedicated training on ethics for judges.
2.8. “The former Yugoslav Republic of Macedonia”
18. On 10 November 2015, the European
Commission issued a report which contains its assessment of what
“the former Yugoslav Republic of Macedonia” achieved over the last
year in view of its accession to the European Union. The European
Commission noted that:
“Widespread allegations of politicisation and of political interference by the executive and the ruling political parties in the work of the law enforcement agencies and the judiciary need to be addressed. The content of the intercepted communications has implicated members of the government and senior officials in abuses of power and corruption in public procurement, urban planning, political party financing and public employment, as well as in interfering in the independence of the judiciary, the media and elections. The reluctance of the relevant law enforcement bodies, including the Public Prosecutor’s Office, to follow up on these revelations in a swift and decisive manner is of concern.”
19. The Parliament of “the former
Yugoslav Republic of Macedonia” is planning to adopt a whistle-blower protection
law following the case of the wire-taps which revealed that the
political system might be seriously undermined by political interference
and corruption. Those revelations had provoked massive demonstrations in
the country. After EU-brokered talks between the
opposition and the government, a special prosecutor was appointed
to probe the illegal surveillance claims. To guarantee her independence,
she will be subject to the regular prosecution hierarchy.
After EU-brokered talks between the
opposition and the government, a special prosecutor was appointed
to probe the illegal surveillance claims. To guarantee her independence,
she will be subject to the regular prosecution hierarchy. 2.9. Italy
20. The United Nations Committee on
Economic, Social and Cultural rights urged Italy “to increase
its efforts to combat corruption, including in the judiciary”.
It called on Italy, “among other measures, to guarantee the transparency and independence of its
anti-corruption institutions, investigate all allegations of corruption and ensure effective
implementation of the anti-corruption law”. To
illustrate this point, we can mention the case of Silvana Saguto,
a Palermo judge who is currently under investigation for alleged
corruption and abuse of office. She is said to have “assigned posts
and stipends to judicial administrators ‘in exchange for jobs and
consultancy for close family members’”.
To
illustrate this point, we can mention the case of Silvana Saguto,
a Palermo judge who is currently under investigation for alleged
corruption and abuse of office. She is said to have “assigned posts
and stipends to judicial administrators ‘in exchange for jobs and
consultancy for close family members’”. 21. The Chamber of Deputies in Italy is currently debating a law
for the protection of whistle-blowers.
2.10. Kosovo*
22. The European Commission issued
a report, on 10 November 2015, which presented its assessment of what
Kosovo achieved over the last year in view of its accession to the
European Union. The Commission noted that “further efforts are required
to ensure independence in law and practice, to prevent and fight corruption
within the judiciary, to recruit and train more qualified staff”.
2.11. Malta
23. In an evaluation report based
on its fourth evaluation round and published in June 2015, GRECO
noted that in Malta:
“there have been some scandals in recent years involving judges which have somewhat tarnished the traditionally acknowledged sound reputation of the Maltese judicial system and have triggered a debate on integrity and accountability matters within the judiciary.”
GRECO criticised the lack of a formal appointment process, with no invitation to apply and no interviews held, which leads to a perception of corruption or undue political influence.
2.12. Republic of Moldova
24. The Assembly called on the
Moldovan Parliament to adopt the required constitutional changes
with regard to “the appointment of the Prosecutor General” and “to
adopt the law on the prosecution service”. The General Prosecutor
is currently appointed by the parliament. In order to limit the
politicisation of the appointment procedure, “the Ministry of Justice
of Moldova recently proposed a new draft law that would require
the General Prosecutor to be nominated by the President from a list
of candidates proposed by the Supreme Council of Prosecutors (a
professional body)”.
This draft law was discussed during the summer of 2015 but was not
adopted. The reforms of the judicial system are postponed while
a newly established working group was in charge of coming up with
a reform for the whole anti-corruption system before the end of November
2015.
The General Prosecutor
is currently appointed by the parliament. In order to limit the
politicisation of the appointment procedure, “the Ministry of Justice
of Moldova recently proposed a new draft law that would require
the General Prosecutor to be nominated by the President from a list
of candidates proposed by the Supreme Council of Prosecutors (a
professional body)”.
This draft law was discussed during the summer of 2015 but was not
adopted. The reforms of the judicial system are postponed while
a newly established working group was in charge of coming up with
a reform for the whole anti-corruption system before the end of November
2015. 25. The Assembly noted as well as a point of concern “impunity
for corruption, as reflected by the low number of convictions for
corruption in the Republic of Moldova”.
2.13. Montenegro
26. The Assembly considered that
Montenegro had made considerable progress on the independence of the
judiciary and the fight against corruption. It especially noted
that:
“The implementation of the laws on the courts, on the rights and duties of judges, on the Judicial Council, … and on the Public Prosecutor’s Office which … were subsequently adopted in 2015, is an essential to ensure an efficient and genuinely independent judicial system and judiciary.”
27. GRECO published, in August
2015, an evaluation report on Montenegro based on its fourth evaluation round.
It acknowledged the steps taken to curb corruption but noted that
corruption remained an important concern in Montenegro. Some of
the issues highlighted in the report include:
- Conflicts of interest: the Law on the Prevention of Conflicts of Interest is applicable to judges and prosecutors but is not effectively implemented by the Commission for the Prevention of Conflicts of Interest. As of 1 January 2016, the Agency for the Prevention of Corruption will take over its implementation;
- Political influence over the Judicial Council: GRECO recommended that Montenegro take additional measures to strengthen the Judicial Council’s independence – both real and perceived;
- Lack of transparency of the work of the prosecution service: GRECO recommended increasing transparency by adopting a public communication strategy and developing relevant training.
2.14. Serbia
28. GRECO, it its fourth evaluation
round report on Serbia, recommended that Serbia changed “the composition
of the High Judicial Council, in particular by excluding the National
Assembly from the election of its members … and taking appropriate
measures to further develop the role of the High Judicial Council
in a genuine self-governing body which acts in a proactive and transparent
manner”.
29. On 10 November 2015, the European Commission made similar
recommendations when it issued a report which assessed Serbia’s
efforts in preparing to meet the EU requirements. The European Commission noted
that even though “codes of ethics are in place for judges, prosecutors
and lawyers”, “there are no
integrity plans in place for the judiciary” and “integrity is not
a standard criterion in the selection and nomination process”. There was therefore still
room for political influence over judicial appointments.
There was therefore still
room for political influence over judicial appointments.30. The European Commission therefore recommended that Serbia “consolidate the justice reform
process, addressing existing gaps in the independence, accountability
and effectiveness of the judicial system and ensure its effective
implementation”.
2.15. Turkey
31. In Resolution 2078 (2015), the Assembly called on the Turkish authorities to “respect
and strengthen the independence of the judiciary and prosecution
service”.
32. The Committee on Legal Affairs and Human Rights, in a report
presented to the Assembly, entitled “Abuse of pretrial detention
in States Parties to the European Convention on Human Rights”, highlighted
a worrisome recent development, namely the dismissal, on 12 May
2015 by the High Judicial Council (HSYK), of judges and prosecutors
who had taken part in a corruption probe in December 2013, which
involved persons close to members of the government. It stressed
that:
“This decision comes shortly after the suspension by the HSYK and arrest of two judges who had refused the prolongation of pretrial detention against a journalist and a number of police officers who had respectively reported on and participated in anticorruption investigations. Reportedly, numerous members of the legal profession as well as a former Justice Minister strongly criticised these decisions, which were seen as punishing judges and prosecutors for their judicial decisions and as the result of political influence on the HSYK.”
33. On 10 November 2015, the European Commission issued a report
which assessed Turkey’s efforts in preparing to meet EU requirements.
The European Commission also stressed that “the undue influence
by the executive in the investigation and prosecution of high-profile
corruption cases continues to constitute a major concern”. It recommended that Turkey
should “strengthen the independence of prosecution and law enforcement
agencies in high level corruption cases”.
It recommended that Turkey
should “strengthen the independence of prosecution and law enforcement
agencies in high level corruption cases”. 2.16. Ukraine
34. The Venice Commission gave
an opinion on amendments to the Constitution of Ukraine, which aimed inter alia to fight corruption within
the judiciary. It welcomed the removal of the power of the Verkhovna
Rada to appoint the judges; “the reform of the Public Prosecutor’s
Office, the guarantees for its independence … and the removal of
its non-prosecutorial supervisory powers”.
35. The Assembly expressed in October 2015 its concern over “the
postponement of the implementation of the Law on the General Prosecutor”,
and called on the Ukrainian authorities to “continue the judicial
and anti-corruption reforms”.
3. Conclusion: relevant recent and ongoing thematic work
36. The above country-by-country
update shows that the issue of judicial corruption is still highly
relevant in many Council of Europe member States. The fact that
judicial corruption cases have actually come up to the fore and
led to successful prosecutions and convictions is in fact a positive
sign for the countries concerned, as it shows that corrupt practices
in courts are neither, or no longer, tolerated nor hushed up.
37. In addition to country-specific developments, the Assembly
has recently adopted two thematic reports which are also relevant
with respect to the fight against judicial corruption.
38. Firstly, the report on “Abuse of pretrial detention in States
Parties to the European Convention on Human Rights” highlights how
corruption in the judiciary can threaten democracy and the rule
of law and notes that “pretrial detention without effective controls
creates opportunities for corruption and generally undermines the public’s
trust in the proper functioning of the criminal justice system”.
39. Secondly, the report on “Improving the protection of whistle-blowers”
(rapporteur: Pieter Omtzigt, Netherlands, EPP/CD) recalls that the
effective protection of whistle-blowers is an essential element
to promote transparency and good governance and a useful tool to
combat corruption, also in the judiciary. Legislation and initiatives
on whistle-blower protection are not limited to judicial corruption,
but most cover members of the judiciary, too, as part of the public
sector. The Assembly adopted, on 23 June 2015, the Resolution 2060 (2015) on improving the protection of whistle-blowers, which
calls for the development and adoption of a binding legal instrument
on whistle-blower protection.
40. An overview of laws, practice and recent initiatives on whistle-blower
protection in Southeastern Europe was published in June 2015 by
the regional anti-corruption initiative in partnership with Blueprint
for Free Speech. Initiatives to draft
and adopt legislation on whistle-blower protection are under way
in the Czech Republic, Italy and France. In Serbia, a new law on
the protection of whistle-blowers came into force in June 2015.
Initiatives to draft
and adopt legislation on whistle-blower protection are under way
in the Czech Republic, Italy and France. In Serbia, a new law on
the protection of whistle-blowers came into force in June 2015. 41. Last but not least, a report under preparation by the Committee
on Legal Affairs and Human Rights on “Strengthening the rule of
law in South-East European countries through targeted reform of
the legal system” (rapporteur: Mr Bernd Fabritius, Germany, EPP/CD)
is likely to cover issues related to judicial independence as well
as corruption, as indicated during a hearing with experts at the
Committee’s meeting in Yerevan last May.