Implementing activities under the MoU between USAID, HJPC and APIK
Diagnostic Analysis of Risks for Corruption and Unethical Conduct in Judiciary
At the same time, there is a public perception that the judiciary in BiH is ineffective in preventing and combating corruption because it is itself corrupt and unethical, as confirmed by the public perception survey the Justice Activity carried out in July 2015. When asked which factors influenced a decision of a judge or prosecutor, a bribe, personal interest/connections and political influence scored highest (on a scale from 1-10 they were rated above 7). 80% of respondents stated that prosecutors focus insufficiently on the prosecution of grave criminal offenses by high officials, with fear and political influence cited as the main reasons. However, a relatively small percentage of respondents stated they knew somebody who was asked to pay a bribe to a court (3.8%) or prosecutor office employee (2%).
Because of the role of the judiciary to protect citizens against the arbitrary or inequitable use of political or economic power, the judiciary in particular is subject to attempts of bribery, coercion, or other undue influence. The aim of such undue influence is to undermine judicial institutions and their ability to hold other institutions accountable.
Nonetheless, too little was known about potential sources of corruption or unethical behavior in the BiH justice sector. During a six month period (May-October 2015), the Justice Activity team of lawyers and criminologists carried out a diagnostic study of these potential sources by looking at governance gaps and integrity or corruption risks in both 1) vertical processes of the justice sector - appointment, promotion, performance evaluation, and mechanisms of accountability, and 2) horizontal processes, such as investigation and criminal proceedings - case detection and selection, case assignment and management, and decision-making. Because judicial corruption is not confined to the inside of the courts the diagnostic study looked at the integrity and corruption risks of a number of justice sector actors individually – judges, police, prosecutors, lawyers – each of whom can distort the course of justice. It also looked at the nature of the interaction among them as another determinant of the justice sector corruption. As a result, the diagnostic study was able to identify vulnerable points in the justice sector and provide recommendations on how to eliminate them. The study combined three methods: (1) interviews with members of the judicial community and other stakeholders (NGOs, academia, international organizations), (2) a survey of the general public and that of justice sector actors, and (3) research and analysis of primary sources, such as policy and regulation. The combination of these methods secured the validation of findings and conclusions, stakeholder input, local ownership of the goals of the diagnostic study, and consensus building on recommendations and the needed system-wide changes.
The Diagnostic Analysis did not look at individual cases of corruption, its aim was rather to identify weak links/spots in the system as whole, making it vulnerable to corruption or unethical behavior. Some of the general findings were that in terms of existing legislation, much of it meets international standards when it comes to guarantees of independence, integrity, accountability, transparency. However, weaknesses of the system were found mostly at the individual level of decision making, where personal and professional integrity is crucial. The Analysis also showed that independence given to judges and prosecutors is not coupled with functioning mechanisms of accountability where the HJPC, as well as its Office of Disciplinary Counsel play a major role. Other findings include the following:
- The criteria and system of judicial appointments, promotions and performance evaluation require improvements. They result in low quality of judicial cadre, which makes it more vulnerable to corruption and unethical behavior.
- Disciplinary proceedings need to in be more efficient and effective, and the confidence in their integrity must be enhanced. Prior misconduct must be properly taken into account in the appointment or promotion procedure.
- There is a low awareness ethics standards in the judiciary and the existing mechanisms of supervision and accountability are insufficient or ineffective;
- The judiciary lacks financial independence and the role of HJPC needs to be strengthened in the process of budget planning.
- Asset declaration system for judges and prosecutors does not function in reality.
- Conflict of interest regulations need to extend from members of the HJPC to all members of the judicial profession.
- Transparency of the judiciary must be improved and relevant information given to citizens in a timely manner.
- The HJPC also must fully open itself to citizens, because of the significant level of independence it enjoys. Public scrutiny should be the key mechanism of its accountability.
- Prosecutors, together with the police, should have a proactive role in detecting corruption at early stages, by looking at different sources of information, such as investigative journalists etc.
- There is a lack of a functioning cooperation between the police and the prosecutor which may lead to the leaking of information, blame shifting, disappearance of evidence etc.
- The police, prosecutors and judges are not active enough in tracing and seizing assets illegally obtained through a criminal activity.
- Other members of the justice chain, such as attorneys, police officers, court and prosecutor office personnel – area important actors who may be in a position to distort the course of justice. Therefore proper control mechanisms relating to their work need to be in place.
There are over 120 recommendations in the Diagnostic Analysis which contain practical and feasible suggestions. They mainly consist of suggestions on how to improve the implementation of existing laws, and only when necessary suggest their change.
The Diagnostic Analysis is made primarily to serve the judiciary in BiH as an objective overview of points of its vulnerability with a view of helping it strengthen itself.