In June, Parliament’s Anti-Corruption Subcommittee began discussing the establishment of a special court on financial crimes. Its proposed jurisdiction ranges from counterfeit and forgery of money and documents to bribery and abuse of power by public officials on active and former duty. Such a scope of offenses would fall under what we at the U4 Anti-Corruption Resource Centre, a knowledge hub on corruption and anti-corruption policies worldwide, have called a “specialized anti-corruption court.”
Over the last two decades, the number of countries that chose to have a special judicial body, division, or set of judges with a substantial or exclusive focus on corruption-related cases has grown. In a 2015 mapping exercise, U4 found around 20 existing anti-corruption courts and we know of at least five more that have been set up since. More countries, such as Armenia and now Lebanon are debating their establishment.
Different degrees of institutional separation and specialization come with different costs and benefits. Anti-corruption courts are latecomers to a trend toward more judicial specialization, following special juvenile and family courts, or commercial courts, among others. A World Bank paper on developing specialized court services found that, as a rule of thumb, a greater degree of institutional separation will be more appropriate when the caseload is higher, when the need for efficiency is greater, and when the need for specialized expertise is more acute.
In our research on anti-corruption courts, U4 found that the most common argument made for special anti-corruption courts is indeed the need for efficient resolution of corruption cases. Reformers want to signal to domestic and international audiences that their country is serious about anti-corruption efforts. In Indonesia and Ukraine, concerns about the integrity of the regular courts were the main reason for setting up special courts with distinct features to insulate them from malpractices and undue influence. In these two countries, anti-corruption court judges are selected from not only within the judiciary but also from among qualified non-career judges, such as law professors and other legal practitioners (accountants have been appointed in Indonesia, for example). In Ukraine, the selection process even includes a panel of international experts with the aim to render the selection process more independent. In Slovakia, concerns about the integrity of the judiciary led to the initial security screening of the candidates for the special court by the National Security Agency. This was later revoked, then extended to all judges by the Constitutional Court. This is an example of how special courts can pilot and lead on new standards for the whole judiciary.
Setting up a special system comes with costs and a new court may compete for resources needed for more general court reforms. Even the appointment of just a handful of specialized judges can constitute a substantial brain drain from the general court system if the pool of judges in a country is not large to begin with. Due to the limited baseline data available in the jurisdictions that have set up anti-corruption courts, it is impossible to make a scientifically sound assessment regarding any improved effectiveness and efficiency of the new courts. This is also because their performance cannot be seen in isolation as it depends on the quality of the evidence and charges brought forward by the investigating and prosecuting bodies.
When discussing whether to establish a specialized anti-corruption court, it is therefore critical to first carefully evaluate what problem specialization is meant to overcome. Is it something that can only be addressed through specialization, or are reforms to the general court system, law enforcement agencies, or the criminal procedure code, or a combination of these, a better alternative?
Such thorough analysis should precede decisions on the institutional design of a specialized court. The models U4 studied range from individual judges with special certification to hear corruption cases, to special branches or divisions and separate, stand-alone units within the judicial hierarchy. There is no one correct approach or clear best practices that can be copied and pasted from one country to another, but there are some common, fundamental questions that reformers should keep in mind when elaborating the design of a specialised court (as detailed on U4’s website):
- Where to place the anti-corruption court in the judicial hierarchy, i.e. whether specialization should extend to the appeals level.
- How large the court should be—the number of judges.
- The substantive scope of the anti-corruption court’s jurisdiction.
- The relationship between the specialized anti-corruption court and the specialized anti-corruption prosecutor—such as the country’s anti-corruption agency, if one exists.
Reformers also need to consider whether to make any special provision for the selection, removal, or working conditions of the anti-corruption court judges, and adopt substantially different procedures for the anti-corruption courts compared to similar criminal cases in regular courts. Special procedures may be necessary if inadequate procedures in the general court system are part of the reason for specialization, and if those procedures cannot or should not be changed generally.
All this needs to be well-thought through, because the high-profile defendants in large-scale corruption cases are typically well-resourced and their legal defense team will likely use their full legal arsenal and seek out any loopholes and legislative and regulatory lapses.