CPI 2023: Corruption and (in)justice

Roberto Martinez B. Kukutschka, Research Expert, Transparency International

Corruption and justice are closely linked in a complex and inverse relationship: where justice prevails, there is little room for corruption, but where corruption thrives, it throws the scales of justice out of balance.

A well-functioning justice system is meant to uphold the rule of law, protect human rights and ensure that all other rights and obligations contained in the law, including existing anti-corruption provisions, are appropriately observed. However, as noted by the United Nations Office on Drugs and Crime (UNODC), many justice systems around the world are overburdened with heavy caseloads, chronically underfunded and need more financial and human resources to fulfil their mandates properly. This includes justice systems in developed countries. In many countries, the different components of the system, i.e., the courts, judges, the police and the prosecution, lack the necessary integration to ensure that the justice process is duly followed. This leads to various malfunctions, such as mismanagement in the administration of justice and high levels of impunity. Under such conditions, justice systems are also unlikely to serve as a proper check on corruption.

Furthermore, there is evidence of increasing outside interference, pressures and efforts to undermine judicial independence. Likewise, prosecutorial independence is under threat in many countries. The latest edition of the World Justice Project’s Rule of Law Index shows the gravity of the situation. In the past year, justice systems in most countries exhibited signs of deterioration, including increasing delays and lower levels of accessibility and affordability. Furthermore, since 2016, the rule of law has declined in 78 per cent of the countries covered in the study. Today, around six billion people live in countries where the rule of law is chronically deteriorating, including through increased politicisation and undue influence on the very same systems meant to constrain power and deliver justice. In this light, the degree of stagnation in the levels of corruption shown by the CPI is not surprising.

The relationship between corruption and justice, however, is more than one-directional. While the declining levels of the rule of law worldwide affect efforts to hold corruption offenders to account, corruption also contributes to the erosion of justice. Corruption is widely recognised as a threat to the effective administration of justice, especially to the basic principle of equality before the law, as enshrined in Article 7 of the Universal Declaration of Human Rights. Some forms of corruption, such as bribery, constitute an obstacle to accessing justice and others allow powerful elites to exercise undue influence on judges and prosecutors to interfere with or block justice processes and gain impunity. Such elites may also rely on corruption to weaponise the justice system to pursue and punish those who try to expose or criticise the system.

For these reasons, the United Nations Special Rapporteur on the Independence of Judges and Lawyers calls attention to the fact that “corruption decreases public trust in justice and weakens the capacity of judicial systems to guarantee the protection of human rights, and it affects the tasks and duties of the judges, prosecutors, lawyers and other legal professionals. By seeking impunity, corruption has a devastating impact on the judicial system as a whole.”

But how does corruption erode the rule of law and lead to injustice? There are several ways in which corruption may contribute to the erosion of justice and the rule of law worldwide and impede the consolidation of accountable and inclusive justice institutions. Since corruption implies, by definition, unequal treatment and the undue benefit of some groups or individuals over others, it obstructs people’s access to justice and their ability to protect their legal rights. Even the simplest forms of corruption, such as bribery or favouritism, can severely undermine the operation of the justice system. A person may, for example, pay bribes or rely on personal connections to alter a legally determined process, ensure that incriminating evidence is lost or destroyed, and speed up or delay a case. Figure 1 shows how the access and affordability of justice tends to be lower in countries where corruption in the public sector is seen as widespread. This relationship stands even when controlling for other factors, such as a country’s level of democracy, inequality and per capita income. In short, when justice can be bought, written laws turn into fiction and impunity thrives.

^{Source: World Justice Project and Transparency International}

In Cambodia (22), for example, shortages of judges and courtrooms are seen as the source of delay for many cases, but court officials seem to prioritise cases with a higher likelihood of benefitting them financially. Furthermore, corrupt practices often allow the accused to escape and make it impossible for victims to get the justice they deserve. Corruption is also used to pay witnesses to not appear in court. In Cambodia, another dimension of the challenges to the justice system is the “alleged entrenched pattern of political influence” which secures impunity for the wealthy and well-connected and is used to silence political opponents and human rights activists.

On the other hand, Estonia (76) shows how simplifying legal procedures and digitalising access to justice can help ensure better access for everyone. The introduction of advanced case-management systems and an online portal where any party can start a case and submit the relevant documentation has made justice swifter, more transparent and accessible. The average duration of a civil court case has been cut by a third and the country now boasts the second fastest court system in Europe. These developments may also help explain the country’s significant improvement in the CPI over the past decade.

As shown above, corruption represents a barrier to accessing justice, particularly for poor and other groups already at risk of discrimination who cannot afford to participate in it. Even if corruption is not actively affecting the outcome of a specific case, it can perpetuate pre-existing patterns of exclusion based on gender, race, ethnicity and religion, among other factors.

In short, corruption can promote injustice by creating barriers to accessing the justice system, allowing actors with enough money or connections to manipulate and bypass the law - shielding some actors from accountability while depriving others of their right to a fair trial and equal treatment - and perpetuating patterns of discrimination. Figure 2 below captures this last point and shows that equal treatment and absence of discrimination correlate with better CPI scores.

While more research is still needed on the links between corruption and discrimination, some of the cases documented by the Equal Rights Trust and Transparency International show the complex relationship between the two phenomena and how they feed off each other. In Madagascar (25), for example, women are still discriminated against and discussing sexual violence is taboo. Only one in ten women say they would dare to report a case of gender-based violence outside of their family circle. This combination of factors make women particularly vulnerable to certain types of corruption, including sextortion. Despite the lack of data on the issue, a survey by the United Nations Development Programme (UNDP) revealed that over a third of the women interviewed received requests for sex from a hierarchical authority in return for a service. Research conducted in Latin America has also shown how members of the LGBTQI+ community are often targeted by security forces for bribes and sextortion. In the case of Argentina (37), for example, the transgender community is seen as particularly vulnerable to abuse. Trans people are often extorted by police forces, and if they refuse to pay, they can be charged with minor crimes that lead to their arrest.

^{Source: World Justice Project and Transparency International}

When big political or economic interests are at stake, actors may rely on corruption or other illegal means to exercise undue pressure and influence the outcomes of prosecutions, investigations or judicial decisions. This can occur through illegal means - blackmail, threats, violence - or through political influence stemming from how relations between the justice system and other branches of government are organised. In the most extreme cases, patronage and clientelist networks can also use their influence to transcend existing institutional and legal restrictions, create impunity for themselves and even alter laws to ensure they are in line with their interests. This brings us back to ensuring that justice systems enjoy enough independence to resist political influence, grand corruption and even capture by political, economic, or other special interest groups.

Over the past decade, attempts to capture or at least weaken the independence of justice systems have become more obvious. Judicial institutions have become targets of government initiatives meant to reduce their oversight on the executive. In Hungary (42), critics have described “the systematic breakdown of the rule of law and democracy [that] can best be illustrated by governmental attacks on judicial independence.” The reforms introduced recently to please the European Commission and unblock some of the frozen EU funds have been deemed insufficient to reinstate the autonomy of the judiciary by civil society groups and by members of the European Parliament. In the case of Guatemala (23), for example, the Public Prosecutor's Office and the judiciary have been captured and instrumentalised to prosecute those standing up against corruption. This has left the state without any institutional capacity to fight corruption and has granted elites and corrupt actors total impunity for their actions. This problem was addressed in the period 2007-2019 by a highly effective International Commission Against Impunity. The commission supported state enforcement institutions in reducing impunity for grand corruption and organised crime. However, the government chose not to continue with the operations of this institution beyond 2019.

The importance of the justice system and its contribution to anti-corruption is embedded in Article 11 of the United Nations Convention against Corruption (UNCAC). This article recognises the importance of the independence of the judiciary and the prosecution services and requires states to strengthen the integrity of those institutions. The United Nations General Assembly has also recognised the important contribution of effective and independent justice systems in its 2021 political declaration on combatting corruption. Other relevant frameworks that stress the importance of the integrity and independence of justice systems include the Bangalore Principles of Judicial Conduct, the International Association of Prosecutors Standards of Professional Responsibility, as well as the United Nations’ Basic Principles on the Independence of the Judiciary. After all, justice can only be effectively administered when attorneys, prosecutors or judges can perform their functions impartially and independently.

The independence of the justice system thus helps protect it against attempts by political authorities to exert control over it. Operational autonomy provides courts, prosecutors and other relevant actors within the justice system the space they need to ensure that nobody, regardless of their rank, position or status in government or society, is beyond the law. The independence of the judiciary, specifically the court system responsible for adjudicating legal disputes, interpreting the law and applying it in legal cases, has been particularly associated with better control of corruption. Countries with more substantial judicial constraints on the powers of the executive and higher levels of judicial independence typically score better on the CPI. Furthermore, our analysis shows that around 40 per cent, or 11 of the 28 countries, that have significantly improved their CPI scores since 2012 have also strengthened judicial constraints on the executive, as measured by V-DEM, over the same period.

A good example of this is Moldova (42), one of the countries that has made the most progress in the CPI over the past few years. Key to Moldova’s success has been strengthening the independence and effectiveness of the judiciary and the steps it has taken to reduce interference – including by politicians – with the judiciary. While there is still room for improvement and this area of reform is still an ongoing battleground, the country’s leaders seem committed to progress. On the other end of the spectrum, when the independence of the judiciary is missing, the law and anti-corruption efforts can be weaponised to silence critics, crack down on opposition or strengthen loyalty towards the regime. Recent crackdowns in countries like China (42) and Saudi Arabia (52) illustrate this point.

Many anti-corruption strategies developed over the past three decades rest on the assumed presence of effective justice systems that can successfully enforce the law, objectively investigate, settle disputes and enact the appropriate sanctions when the law is breached. Unfortunately, as shown by the World Justice Project’s data, this picture does not apply to most countries. Law enforcement and justice institutions often lack the resources, capacity or simply the will to fulfil their mandates. The inability of formal or state-run justice institutions to deliver justice means that people often rely on informal ways of settling disputes and protecting their rights. According to estimates published by the United Nations, over 80 per cent of disputes in some countries are resolved through informal justice systems, which tend to be more accessible to poor and disadvantaged groups. The World Bank also estimates that over 70 per cent of people in fragile and conflict-affected areas rely on traditional or religious leaders to help them resolve disputes.

This is profoundly worrying for global efforts to tackle corruption. Weak, dysfunctional or corrupt justice systems are ineffective in deterring and sanctioning misconduct, including corruption, regardless of how comprehensive and well-designed legal and institutional anti-corruption frameworks are. Furthermore, the functioning and independence of the justice system affects the performance of anti-corruption institutions and the impact of any legislation designed to target corruption. After all, the expected deterrent effect of any anti-corruption reform depends, to an extent, on the likelihood that it will be enforced appropriately and that individuals who break the law are duly prosecuted and punished.

In settings with severe governance challenges or where justice systems are unable (or perhaps unwilling) to apply the law systematically, the intended effects of legal anti-corruption reforms rarely materialise and legislation loses its deterrent effect as those breaking the law do not see risks of punishment, while victims may refrain from reporting based on their expectation that nothing will be done. This helps explain why, despite stricter anti-corruption regulations and specialised institutions, progress remains limited: only 28 out of the 180 countries included in the CPI have made significant progress in controlling public sector corruption.

Not accounting for the state's capacity and the functioning of its justice system when designing anti-corruption interventions, can lead to serious unintended consequences and even higher levels of corruption. Unfortunately, many anti-corruption reforms have widened the gap between legal frameworks and on-the-ground realities. Increasing traditional sanctions or attempting to introduce additional layers of oversight and accountability in contexts with weak justice systems can increase, rather than reduce, public sector corruption. In such cases, the new rules can be manipulated by corrupt actors to expand corrupt networks or be turned into opportunities to profit from shielding new groups or individuals from the law. Furthermore, such reforms can contribute to increased frustration among citizens as the mismatch between the promises and expectations embedded in the law and the realities on the ground grow further apart.

Addressing the structural and organisational issues that impede justice systems around the world from fulfilling their mandate is thus essential to unleashing the potential of past and future efforts against corruption.

A country’s justice system is an essential safeguard against corruption. At the same time, corruption can gravely distort the effectiveness of the system and its overall ability to deliver justice and uphold the rule of law. It is thus important to invest in making justice systems more effective, independent and resistant to undue influence.

• Establishing meritocratic recruitment and appointment procedures with appropriate vetting processes for judges, prosecutors and the police, as well as measures to prevent arbitrary or discretionary dismissals, are important steps to guard the independence of the justice system. Given the crucial role of the justice system in the global fight against corruption and the high degree of independence and protections required to shield it from undue influence, it is also important to have appropriate control and monitoring mechanisms to ensure that the system operates with integrity, follows due process and is ultimately accountable for its decisions. Introducing financial and interest disclosure mechanisms, setting up internal bodies that can help prevent and address conflict of interest, as well as whistleblowing channels, are ways to uphold integrity within the justice system.
• Simplifying procedures, improving case management systems and relying on technological solutions to manage data, records and documents in a way that increases transparency and reduces opportunities for staff to manipulate proceedings or tamper with documents can be a starting point. Setting clear timeframes for different procedures and monitoring delays can also help make the system more transparent and accountable to the public. It is also worth keeping in mind that justice systems are complex entities: their composition varies across countries and the different components, including the police, prosecution, courts and judges, often need to collaborate. Ensuring better coordination and collaboration between the different parts of the system, however, is not always an easy task, but it is a crucial one.
• Given the weak state of many justice systems worldwide, it can be worth exploring how jurisdictions with stronger rule of law can help curb grand corruption beyond their national borders. Countries with robust justice systems could provide alternative avenues for accountability in their own jurisdictions, through enforcement and remediation. As argued in Transparency International's working paper on Tackling Grand Corruption Impunity, states committed to fighting grand corruption should consider developing a legal definition and introducing special procedural measures for such cases, including extensive jurisdiction, long statutes of limitation and minimal immunity for public officials accused of misappropriation of state funds. Taking other steps, such as providing for private prosecutions in the public interest (or extensive partie civile rights), allowing qualified civil society organisations to represent victims of corruption and broadening the definition of justiciable harm, could also prove helpful to reduce impunity in grand corruption cases and bring justice to victims.
• Finally, tackling money laundering is another important step towards ending impunity for corruption, compensating victims and returning assets to their rightful owners. States could make significant progress by implementing a variety of measures, which could involve introducing a rebuttable presumption of money laundering in specific cases, establishing criminal liability for financial institutions and other enablers who neglect their duty to prevent money laundering and creating frameworks that ensure the transparent and accountable return of assets. States should explore a variety of potential improvements to the international legal framework and institutions. This is crucial for fostering improved international cooperation in enforcement and providing support to countries where justice institutions are willing but face challenges in pursuing grand corruption offenders.