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« Building the foundations: Bribery risk assessment as the basis of effective risk mitigation | Main | Alcoa partner talks about possible FCPA settlement »
Saturday
Jul132013

U.K. Supremes dish on judicial corruption

The recent decision of the UK Supreme Court in Kapri v Government of Albania [2013] UKSC 48 highlights the issue of systemic corruption in some national judicial systems.

The only successful ground of appeal concerned the issue of whether extradition should be refused where there would be a flagrant denial of a fair trial by reason of a systemically corrupt judicial system. One of the rebuttal points of argument advanced by the Respondent, and probably not the best, was that denying extradition on the grounds of a flagrant denial of justice would have serious ramifications given that Transparency International’s Corruption Perceptions Index 2012 ranked Albania above 17 other countries.

Interestingly, the judgment relied on a number of NGO and governmental reports, in particular a U.S. State Department 2010 Human Rights Report on Albania (USSD Report 2010), to the effect that widespread corruption prevented the judiciary in Albania from functioning independently and efficiently.  

One section of Lord Hope’s judgment is worth quoting in full:

…where allegations of corruption are widespread they must be taken seriously. So too must an appreciation of what corruption may lead to when it affects the whole system. It may involve simple bribery of judges and court officials, or it may involve interference with the judicial system for political reasons of a much more insidious kind. Unjust convictions may result, just to keep the system going and keep prices up. Everyone whose case comes before the courts of that country where practices of that kind are widespread is at risk of suffering an injustice. Those who are familiar with the system may know how much they need to pay, or what they have to do, to obtain a favourable decision but be quite unable  to come up with what is  needed to achieve that. Those who are not familiar with it will be at an even greater disadvantage...The stark fact is that systemic corruption in a judicial system affects everyone who is subjected to it. No tribunal that operates within it can be relied upon to be independent and impartial. It is impossible to say that any individual who is returned to such a system will receive that most fundamental of all the rights provided for by article 6 of the Convention, which is the right to a fair trial.

The existence of systemically, or for that matter, even mildly corrupt judicial systems, is not only a major issue for those fighting extradition but for companies investing in such countries. Arbitration agreements and investment treaties can only provide partial insulation from corrupt judicial systems. Although, the countries with such systems are generally those most in need of foreign investment, the existence of a corrupt judicial system should present a luminous red flag for most foreign investors. Having said that, countries with more developed judicial systems have no grounds for complacency, particularly, those constantly exposed to insidious political interference.

The full judgment of the U.K. Supreme Court in Kapri v Government of Albania (July 10, 2013) is available here.

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Alistair Craig is a commercial barrister practicing in London.