UN Guide for Anti-Corruption Policies - United Nations Office on ...

Article 11*
Measures relating to the judiciary and prosecution services
1. Bearing in mind the independence of the judiciary and its crucial role in combating
corruption, 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 <strong>for</strong> corruption among members of the judiciary. Such measures
may include rules with respect to the conduct of members of the judiciary.
2. 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 <strong>for</strong>m part of the judiciary but enjoys independence similar to that of the judicial service.
* <strong>UN</strong> CONVENTION AGAINST CORRUPTION
The corruption of judicial institutions frustrates all of these mechanisms,
allowing judicial decisions made based on improper influences and untested
assertions. It also denies litigants basic fairness and the right to equality
be<strong>for</strong>e the law. The ultimate result is inconsistent, ad hoc decision-making, a
lack of public credibility, and in systems which employ judge-made law, poor
legal precedents. Judicial corruption also greatly reduces the usefulness of
judicial institutions in combating corruption itself. The courts are not only
essential to the prosecution and punishment of corruption offenders, but also
to other accountability structures such as civil litigation (e.g., by unsuccessful
contract or job applicants) and the judicial review of anti-corruption measures
and agencies themselves, and these are rendered ineffective or even counterproductive
if the judges themselves or their supporting institutions are corrupt.
The re<strong>for</strong>m of judicial institutions is made more difficult and complex by many
of the very structures that are intended to ensure the independence of judges
from corrupt or other undue influences. Judicial independence and security of
judicial tenure generally makes the discharge or discipline of corrupt judges
very difficult, if not impossible. Many countries also extend some degree of
legal immunity to judges in order to prevent domination or intimidation from
law-en<strong>for</strong>cement officials or prosecutors, and these privileges may also shield
corrupt judges. Criminal prosecution of judges may also find it difficult to
ensure that the accused judge is tried fairly.
Any strategy <strong>for</strong> the re<strong>for</strong>m of judicial institutions in a specific country should
be carefully considered in light of the state of judicial independence in that
country and the specific constitutional, legal and conventional measures used
to protect it. Be<strong>for</strong>e anti-corruption re<strong>for</strong>ms are instituted, it may be necessary
to ensure that basic judicial independence from other elements of the State
are in place and operating effectively. 36 In many cases, the dominant
36 Many sources have set out what are seen as requirements <strong>for</strong> judicial independence, and as this is
generally seen as a matter <strong>for</strong> more general rule of law re<strong>for</strong>ms than anti-corruption strategies, it is not
discussed in detail here. See, <strong>for</strong> example, “Basic Principles on the Independence of the Judiciary”,
Report of the Seventh <strong>United</strong> <strong>Nations</strong> Congress on the Prevention of Crime and the Treatment of
Offenders, A/CONF/121/22/rev.1, <strong>UN</strong> Sales # E.86.IV.1, Part I.D.2, reprinted in <strong>United</strong> <strong>Nations</strong>:
Compilation of International Instruments, Vol.1 Part 1 and International Commission of Jurists,
Declaration of Delhi (1959), reprinted in The Rule of Law and Human Rights: Principles and
Definitions (I.C.J., Geneva, 1966). See also Nemetz, N.T., "The concept of an independent judiciary"
(1986) 20 U. of British Columbia L. Rev. pp.285-96, Rosenn, K.S., "The protection of judicial
independence in Latin America", (1983) 19 U. Miami L. Rev, pp.1-35, and Stevens, R. Independence of
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