The Pros And Cons Of Judicial Corruption
An effective judiciary has to be an advocate against corruption and assure fairness in legal procedures. Unfortunately, people’s experiences in court are often far from fair. Judges can also bribe or be bribed, or they can suffer pressure from above. If politicians abuse their power, they can influence decisions and mislead courts’ lawful procedures by bribing justices. Judicial corruption endures as a serious barrier to citizen’s right and undermines basic human rights issues such as right to fair trial. In this paper, I am going to look at corruption among white-collar employees (government officials) and how it violates basic human rights. We are going to see how in the Unites States, a country that has checks and balances, corruption is
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still present.
The right to a fair trial is recognized in several human rights treaties as well as domestic legislation (e.g. ICCPR, Article 14; ECHR, Articles 6 and 7). It is composed of a general range of principles that provide for the fair, effective and efficient administration of justice.
International organizations have developed and set down instruments of basic procedurals that safeguard and meet the notions of fair trial (the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the European Convention on Human Rights).
These instruments primarily include: the right to an effective remedy by the competent national tribunals; the right to a fair trial both in civil and in criminal cases; and equality of all before the law. Article 8 of the Universal Declaration of Human Rights (1948) states the right of individuals to judicial protection as: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” In this respect, the UDHR takes into account the possibility of legal proceedings in any state. The European Convention on Human Rights (1953) does not profoundly pole apart from the UDHR and it declares: “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by …show more content…
law.”
The right to fair trial is found in some other international instruments, such as resolution 1996/15, in which the Economic and Social Council recommended UN member states that have not abolished the death penalty, to ensure the protection of the rights of convicted facing the death penalty. In addition, the African Charter on Human and Peoples’ Rights (1981) in Article 7 conveys: “Every individual shall have the right to have his cause heard. This comprises: (a) The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) The right to be presumed innocent until proved guilty by a competent court or tribunal; (c) The right to defense, including the right to be defended by counsel of his choice; (d) The right to be tried within a reasonable time by an impartial court or tribunal.”
The right to a fair trial is indivisibly interrelated to the right of an effective remedy and the most appropriate body able to ensure that recovery is the court. It is for this reason that all respected international legal instruments (conventions) primarily secured the society with the right to judicial protection and access to justice.
Therefore, the appearance of corruption in the judicial system is a serious crime that undermines the foundations of state power and administration, discredits and undermines the authority of the government in the eyes of the citizens, affecting their legitimate rights in front of the law. Infringing on the activity of judicial bodies, bribery leads to violation of the human rights (the right to fair trial). It damages and dishonors the reputation of the courts. As succinctly stated by United Nations Secretary General, Ban Ki-moon: “Corruption undermines democracy and the rule of law. It leads to violations of human rights. It erodes public trust in government. It can even kill -- for example, when corrupt officials allow medicines to be tampered with, or when they accept bribes that enable terrorist acts to take place.”
Despite the long history of corruption, there is no single universally agreed definition. The proposed approach to define corruption and measures of its punishment can be found in various international, regional, and national regulations, such as the United Nations Convention against Corruption, the Inter-American Convention against Corruption, the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, and the African Union Convention on Preventing and Combating Corruption.
Diverse ideas about what constitutes as corrupt practices have resulted in different definitions of corruption. Today, probably the most used definition is the one adopted by the non-governmental organization Transparency International: “corruption is the abuse of entrusted power for private gain.” However, regardless of the complexity of defining the systemic corruption of the wrongful act is always damaging to the public and alone violates the rights of every individual, especially when it comes to equal access to the practice of human rights and their inability to provide decent protection.
In the context of the judicial system, corruption may be defined as “acts or omissions that constitute the use of public authority for the private benefit (both financial or material gain, and non-material gain such as the furtherance of professional ambition) of court personnel, and result in the improper and unfair delivery of judicial decisions. Such acts and omissions include bribery, extortion, intimidation, influence peddling and the abuse of court procedures for personal gain”.
The following is the list of core corrupt acts, classified by the United Nations Office on Drugs and Crime: bribery, embezzlement, theft, fraud, extortion, nepotism, favoritism, and clientelism. However, it is important to note that this is not an exhaustive list. Progressive development could enlarge this list to include other acts in the future. This paper will address to two classifications of corruption – bribery and embezzlement – since, these criminal acts are seen as “popular” among white-collar employees like higher government officials. Bribery is perhaps the most well known form of corruption. It is obtaining money or property benefit from private/public individuals for the acts or omissions within the competence of the official service. A crime is considered completed when the demand side receives benefit from the supply side (who pays the bribe). Bribery always involves at least two primary parties. Both raise serious ethical and legal issues and involve a breach of trust and duty by both parties.
Embezzlement, another act of corruption, may be defined as the misappropriation or other diversion by a public official, for purposes unrelated to those for which the assets were intended, for his benefit or for the benefit of another person or entity, of any property, public or private funds or securities or any other thing of value entrusted to the public official by virtue of his position. The embezzlement of property can also occur in the private sector in the course of economic, financial or commercial activities.
Corruption has penetrated all levels of government and most other aspects of life in Russia. Law-enforcement agencies are ranked as top five in the most corrupt spheres at the government level. Political corruption in Russia impacts the judiciary and individual human rights. The response of the court to complaints, concerning corruption in the judicial system for the rejection of the rights of defendants, ends up with individuals have no right to interfere in the affairs of the court.
The conviction of Mikhail Khodorkovsky and Platon Lebedev has confirmed that the Russian judicial system is completely dependent on corrupt officials.
This was the statement of the lawyers of Khodorkovsky and Lebedev, released after the court had found the defendants guilty of creating an organized group in committing crimes in the oil complex of Russia and the crimes of selfish motives for personal gain. Khodorkovsky himself stated that the truth behind his conviction was the retribution for financing political parties that opposed President Putin. He had provided funding to nearly all political parties and was publishing the prestigious “Moskovskiye Novosti” newspaper, which criticized President
Putin.
The belief that corruption is a distinctive feature of Russia and a number of underdeveloped countries, such as Afghanistan, is one of the misleading concepts as for today. Allegedly, there is no corruption in the United States and in the European Union. Countries are “crystal clear.” It is enough to study the evidence against the abuse of power in most of these countries to counter that view. In the E.U., the list of corrupt officials includes not only local traffic police, but as well as some heads of state. For instance, in the case of the former German President Christian Wulff, he was accused of as many as 28 instances of abuse of power. Wolf, however, was justified.
As for the U.S., the situation of bribery and corrupt officials is even worse than in the E.U. Americans think that corruption is the major problem followed by unemployment, and it is indeed a true remark. According to the survey of the Gallup, an American Institute of Public Opinion, three in four (75%) Americans believe that the U.S. authorities are corrupt. What is striking is that the judicial system of the U.S. is susceptible to corruption too.
“Kids for cash” scandal about thousands of children in Pennsylvania being jailed by two corrupt judges, who received $2.6 million in kickbacks, revealed that corruption is indeed within the judiciary system and mostly driven by the private prison facilities seeking profits by any means necessary. It was one of the biggest corruption scandals to hit America’s juvenile justice system where children had been tossed into for-profit youth centers without a lawyer to represent them.
Accused of committing an “immoral crime”, the former Pennsylvania judge Mark Ciavarella Jr., was sentenced to 28 years in prison for illegally accepting money from the owner of prison facility for minors, in exchange for incarcerating thousands of adults and children. Prosecutor stated that Ciavarella was sending minors to prisons as part of the “Kids for Cash” scheme with Robert Mericle, builder of two private youth centers for the detention of juveniles. As soon as the case against Ciavarella was opened, a special investigation team began a review of cases, which he led between 2003 and 2008. As a result, the Pennsylvania Supreme Court has overturned some 5,000 convictions issued by him claiming that Ciavarella violated the rights to fair trial of the juveniles, including the right to legal counsel, which was declared on the U.S. Constitution. His embezzlement, abuse of power in return for money, resulted to suffrage of several thousand children, aged 10 to 18 years old. Among those young juveniles was 14-year-old Hillary Transue, who was sentenced to three months imprisonment in a center for juvenile offenders for creating a MySpace page mocking her assistant high school principal. Another one is 13-year-old Shane Bly, who was sent to boot camp for two weekends on charges of trespassing in a vacant building.
The former judge was sentenced in accusation of racketeering, money laundering, mail fraud and tax evasion. In addition to his imprisonment, the court ordered Ciavarella to pay $1.2 million in restitution.
still present.
The right to a fair trial is recognized in several human rights treaties as well as domestic legislation (e.g. ICCPR, Article 14; ECHR, Articles 6 and 7). It is composed of a general range of principles that provide for the fair, effective and efficient administration of justice.
International organizations have developed and set down instruments of basic procedurals that safeguard and meet the notions of fair trial (the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the European Convention on Human Rights).
These instruments primarily include: the right to an effective remedy by the competent national tribunals; the right to a fair trial both in civil and in criminal cases; and equality of all before the law. Article 8 of the Universal Declaration of Human Rights (1948) states the right of individuals to judicial protection as: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” In this respect, the UDHR takes into account the possibility of legal proceedings in any state. The European Convention on Human Rights (1953) does not profoundly pole apart from the UDHR and it declares: “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by …show more content…
law.”
The right to fair trial is found in some other international instruments, such as resolution 1996/15, in which the Economic and Social Council recommended UN member states that have not abolished the death penalty, to ensure the protection of the rights of convicted facing the death penalty. In addition, the African Charter on Human and Peoples’ Rights (1981) in Article 7 conveys: “Every individual shall have the right to have his cause heard. This comprises: (a) The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) The right to be presumed innocent until proved guilty by a competent court or tribunal; (c) The right to defense, including the right to be defended by counsel of his choice; (d) The right to be tried within a reasonable time by an impartial court or tribunal.”
The right to a fair trial is indivisibly interrelated to the right of an effective remedy and the most appropriate body able to ensure that recovery is the court. It is for this reason that all respected international legal instruments (conventions) primarily secured the society with the right to judicial protection and access to justice.
Therefore, the appearance of corruption in the judicial system is a serious crime that undermines the foundations of state power and administration, discredits and undermines the authority of the government in the eyes of the citizens, affecting their legitimate rights in front of the law. Infringing on the activity of judicial bodies, bribery leads to violation of the human rights (the right to fair trial). It damages and dishonors the reputation of the courts. As succinctly stated by United Nations Secretary General, Ban Ki-moon: “Corruption undermines democracy and the rule of law. It leads to violations of human rights. It erodes public trust in government. It can even kill -- for example, when corrupt officials allow medicines to be tampered with, or when they accept bribes that enable terrorist acts to take place.”
Despite the long history of corruption, there is no single universally agreed definition. The proposed approach to define corruption and measures of its punishment can be found in various international, regional, and national regulations, such as the United Nations Convention against Corruption, the Inter-American Convention against Corruption, the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, and the African Union Convention on Preventing and Combating Corruption.
Diverse ideas about what constitutes as corrupt practices have resulted in different definitions of corruption. Today, probably the most used definition is the one adopted by the non-governmental organization Transparency International: “corruption is the abuse of entrusted power for private gain.” However, regardless of the complexity of defining the systemic corruption of the wrongful act is always damaging to the public and alone violates the rights of every individual, especially when it comes to equal access to the practice of human rights and their inability to provide decent protection.
In the context of the judicial system, corruption may be defined as “acts or omissions that constitute the use of public authority for the private benefit (both financial or material gain, and non-material gain such as the furtherance of professional ambition) of court personnel, and result in the improper and unfair delivery of judicial decisions. Such acts and omissions include bribery, extortion, intimidation, influence peddling and the abuse of court procedures for personal gain”.
The following is the list of core corrupt acts, classified by the United Nations Office on Drugs and Crime: bribery, embezzlement, theft, fraud, extortion, nepotism, favoritism, and clientelism. However, it is important to note that this is not an exhaustive list. Progressive development could enlarge this list to include other acts in the future. This paper will address to two classifications of corruption – bribery and embezzlement – since, these criminal acts are seen as “popular” among white-collar employees like higher government officials. Bribery is perhaps the most well known form of corruption. It is obtaining money or property benefit from private/public individuals for the acts or omissions within the competence of the official service. A crime is considered completed when the demand side receives benefit from the supply side (who pays the bribe). Bribery always involves at least two primary parties. Both raise serious ethical and legal issues and involve a breach of trust and duty by both parties.
Embezzlement, another act of corruption, may be defined as the misappropriation or other diversion by a public official, for purposes unrelated to those for which the assets were intended, for his benefit or for the benefit of another person or entity, of any property, public or private funds or securities or any other thing of value entrusted to the public official by virtue of his position. The embezzlement of property can also occur in the private sector in the course of economic, financial or commercial activities.
Corruption has penetrated all levels of government and most other aspects of life in Russia. Law-enforcement agencies are ranked as top five in the most corrupt spheres at the government level. Political corruption in Russia impacts the judiciary and individual human rights. The response of the court to complaints, concerning corruption in the judicial system for the rejection of the rights of defendants, ends up with individuals have no right to interfere in the affairs of the court.
The conviction of Mikhail Khodorkovsky and Platon Lebedev has confirmed that the Russian judicial system is completely dependent on corrupt officials.
This was the statement of the lawyers of Khodorkovsky and Lebedev, released after the court had found the defendants guilty of creating an organized group in committing crimes in the oil complex of Russia and the crimes of selfish motives for personal gain. Khodorkovsky himself stated that the truth behind his conviction was the retribution for financing political parties that opposed President Putin. He had provided funding to nearly all political parties and was publishing the prestigious “Moskovskiye Novosti” newspaper, which criticized President
Putin.
The belief that corruption is a distinctive feature of Russia and a number of underdeveloped countries, such as Afghanistan, is one of the misleading concepts as for today. Allegedly, there is no corruption in the United States and in the European Union. Countries are “crystal clear.” It is enough to study the evidence against the abuse of power in most of these countries to counter that view. In the E.U., the list of corrupt officials includes not only local traffic police, but as well as some heads of state. For instance, in the case of the former German President Christian Wulff, he was accused of as many as 28 instances of abuse of power. Wolf, however, was justified.
As for the U.S., the situation of bribery and corrupt officials is even worse than in the E.U. Americans think that corruption is the major problem followed by unemployment, and it is indeed a true remark. According to the survey of the Gallup, an American Institute of Public Opinion, three in four (75%) Americans believe that the U.S. authorities are corrupt. What is striking is that the judicial system of the U.S. is susceptible to corruption too.
“Kids for cash” scandal about thousands of children in Pennsylvania being jailed by two corrupt judges, who received $2.6 million in kickbacks, revealed that corruption is indeed within the judiciary system and mostly driven by the private prison facilities seeking profits by any means necessary. It was one of the biggest corruption scandals to hit America’s juvenile justice system where children had been tossed into for-profit youth centers without a lawyer to represent them.
Accused of committing an “immoral crime”, the former Pennsylvania judge Mark Ciavarella Jr., was sentenced to 28 years in prison for illegally accepting money from the owner of prison facility for minors, in exchange for incarcerating thousands of adults and children. Prosecutor stated that Ciavarella was sending minors to prisons as part of the “Kids for Cash” scheme with Robert Mericle, builder of two private youth centers for the detention of juveniles. As soon as the case against Ciavarella was opened, a special investigation team began a review of cases, which he led between 2003 and 2008. As a result, the Pennsylvania Supreme Court has overturned some 5,000 convictions issued by him claiming that Ciavarella violated the rights to fair trial of the juveniles, including the right to legal counsel, which was declared on the U.S. Constitution. His embezzlement, abuse of power in return for money, resulted to suffrage of several thousand children, aged 10 to 18 years old. Among those young juveniles was 14-year-old Hillary Transue, who was sentenced to three months imprisonment in a center for juvenile offenders for creating a MySpace page mocking her assistant high school principal. Another one is 13-year-old Shane Bly, who was sent to boot camp for two weekends on charges of trespassing in a vacant building.
The former judge was sentenced in accusation of racketeering, money laundering, mail fraud and tax evasion. In addition to his imprisonment, the court ordered Ciavarella to pay $1.2 million in restitution.