Law & Economics · teoria econômica do direito

Um judiciário independente basta para mitigar a corrupção do próprio poder judiciário?

Não.

Empirical research on the determinants of corruption has made substantial progress over the last decade. To date, the consequences of different structures of the legal enforcement institutions have, however, only played a marginal role. This contribution deals with both the determinants of corruption in the judiciary and the consequences of judicial organization for corruption at large. Regarding the latter, it is shown that the actual independence of the judiciary as well as that of prosecution agencies is correlated with lower levels of corruption. This is also true for a third indicator that measures the degree to which judges are held accountable for their decisions (“judicial accountability”). Furthermore, independence and accountability function as complements in preventing corruption – judicial accountability without independence appears to be ineffective, whereas judicial or prosecutorial independence alone can even have adverse effects. [On the wrong side of the law – Causes and consequences
of a corrupt judiciary,  Stefan Voigt, Jerg Gutmann, International Review of Law and Economics, v.43, 2015, 156-166]

Vejamos as recomendações de política que os autores derivam de seu estudo.

“(…) (1) Make sure that the salaries of judicial personnel remain at least constant in real terms, i.e. insure their certainty, (2) insure that court decision are regularly published, (3) do away with the monopoly of the prosecutor to prosecute criminal acts, (4) reduce the number of independent procedural actions that need to be taken to produce an enforceable court decision and (5) increase the necessity for judges to justify their decisions in legal terms”. (p.163)

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