Special anti-corruption courts: Basic choices to be made
In the ongoing struggle against corruption and related offences, many countries have established specialised anti-corruption institutions, distinct from the regular institutions of justice. Matthew C. Stephenson, Professor at Harvard Law School, and U4 advisor Sofie A. Schütte have looked at 20 such specialised courts worldwide in the new U4 Issue Specialised anti-corruption courts: A comparative mapping.
More countries are considering to set up specialised anti-corruption courts for efficiency, integrity and expertise reasons. As for other specialised anti-corruption bodies, the expectation are high that they will bring about change in jurisdictions of impunity, but the fact is that evidence is too scarce to make an assessment about these courts’ g effectiveness. Our study is just a first step in this regard, mapping the existing courts and their institutional designs.
There are a number of different models for judicial specialisation, and there is no one correct approach or set of clear best practices. When deciding whether to create a specialised court, and if so, how to design it, reformers must carefully consider the specific problems that specialisation is meant to redress, as well as other aspects of the political, legal, and institutional environment in the country that might impose constraints or otherwise affect how the court will operate.
Key questions to ask are
- Why is specialisation needed or demanded?
- Is it because of efficiency and expertise needs, and/or integrity and independence issues in an environment where the regular courts are no longer trusted?
- Are there are other reasons?
- And is setting up a special mechanism the best way to deal with these challenges? Are there alternatives?
The reasons for setting up a court should be kept in mind when considering the following important design choices:
- The place of the anti-corruption court in the judicial hierarchy, most importantly, whether the specialised court will serve as a court of first instance or an appellate court, or both, as well as the question of which higher court (if any) has the authority to review the special anti-corruption court’s rulings.
- The size of the court. How many judges will sit on the specialised anti-corruption court, or be designated as special anti-corruption judges? Specialisation can consume resources needed for broader reforms. Are there sufficient judges to draw on? If judges work inefficiently or lack expertise because of a lack of resources and training facilities, should this be addressed generally or should priority be given to special areas of law, such as corruption?
- The substantive scope of the anti-corruption court’s jurisdiction, that is, what kinds of cases it resolves. Will the court’s jurisdiction over corruption cases be expansive or strictly limited? If limited, in what way?
- The relationship between the specialised anti-corruption court and the specialised anti-corruption prosecutor, such as the country’s ACA (if one exists). The effectiveness of a specialised anti-corruption court depends in large measure on the effectiveness of the body or bodies that have the power to file cases in that court.
- Whether to make any special provision for the selection, removal, or working conditions of the anti-corruption court judges, or whether they should be employed on the same terms as regular judges at a comparable level of the country’s judicial system.
- Whether to adopt substantially different procedures for the anti-corruption courts, as compared to the procedures that would apply to similar criminal cases heard by the regular courts. If inadequate procedures in the general court system are part of the reason for specialisation, and if procedures cannot or should not be changed generally, then special procedures may need to be developed.