The British Ukrainian Chamber of Commerce (“BUCC”) is concerned about the detrimental effect of corruption in the Ukrainian judicial system, in particular to deter investment into Ukraine. US Vice President Biden has recently spoken forcefully about the urgent need for Ukraine to address corruption issues, and in this, he is strongly supported by Ukrainian civil society.
The BUCC has been a leader in addressing
judicial corruption by developing a proposal to create a legal ombudsman for
Ukrainian courts (the “Legal Ombudsman”), modelled on the successful Swedish
legal ombudsman. This Legal Ombudsman proposal was originally
published in the 27 March 2015 edition of the KyivPost, and has been further
explained in subsequent articles.
It has attracted much support, including within the Ukrainian judiciary. This
article reflects recent discussions on the Legal Ombudsman proposal, in
particular to respond to questions posed by non-lawyers.
The Current Context
To
begin with, regarding the current context, the Open Court initiative, developed
by Stanislav Batryn with others,
has been the most effective measure so far to help fight corruption in Ukrainian
courts by permitting the actual behavior of judges to be recorded. Mr. Batryn’s
campaign successfully obtained open access for the public to Ukrainian courts,
including the right to videotape proceedings. The Open Court initiative is now campaigning
for judicial decisions to be published more effectively, with access to such publication
being better organised, and for legal ethics to be better defined and enforced.
The
second successful measure to help fight corruption in Ukraine has been the
appointment of the Business Ombudsman, Algirdas Semeta, an initiative sponsored
by the European Bank for Reconstruction and Development (“EBRD”). The Business Ombudsman has successfully addressed problems over
obtaining permits and licenses from, and other actions by, administrative
agencies, to solve problems before they get to court. However, the Business
Ombudsman, as a non-lawyer, is not involved in court proceedings and does not
handle complaints about judicial decisions.
Thus,
the needed third step, to help implement the results of the Open Court
initiative and supplement the work of the Business Ombudsman, is to create a
Legal Ombudsman to cure important abuses in the Ukrainian courts in response to
complaints on judicial decisions having no genuine legal basis.
What the Legal Ombudsman Will Do for the
Rule of Law in Ukrainian Courts
The Legal Ombudsman proposal will fight
injustice in Ukrainian courts by appointing an eminent jurist of established
integrity to authoritatively review court decisions, and the behavior of
Ukrainian judges in legal proceeding including as recorded pursuant to the Open
Court initiative, and formally report to Parliament, the High Council of
Justice and the Presidential Administration, where such judicial decisions or
other actions are found to have no genuine legal basis.
These
cases, described for the implementation of Ukraine’s many bi-lateral investment
treaties as representing “denials of justice” are, in effect, already specially
taken care of outside of the Ukrainian legal system by special arbitration
abroad – to overcome the risk of corruption in local courts being used against
foreign investors. However, such denial of justice cases ordinarily take a long
time – up to three or four years to exhaust local Ukrainian remedies, and then
another three to four years to arbitrate the claims. Typically, by the time a
bi-lateral investment treaty arbitration is completed, the judicially stolen
investment will have been sold on to an allegedly bona-fide purchaser, so the
business itself can no longer be recovered to implement the arbitral award. Such
bi-lateral treaty arbitration is supposed to be available largely as a
deterrent to corruption, but in Ukraine it is very often actually needed to
respond to court abuse. No investor wants
to invest in Ukraine if there is a significant risk of having to spend much
more, over six to eight years, in litigation and then a bi-lateral treaty
arbitration merely to recover damages for such abuse of justice.
The Legal Ombudsman project intends to protect
investors and others in months rather than years, while their businesses can still
be recovered. The principal legal basis for the Legal Ombudsman
proposal is the judicial oath that requires judges to decide cases in
accordance with law. Violation of this oath, such as by deciding a case without
any genuine legal basis, is a basis for dismissal of a judge. Where a “denial
of justice” is discovered, the Legal Ombudsman would report to Parliament, the
High Council of Justice and the Presidential Administration in order for appropriate
action to be taken for the judge involved to be dismissed or otherwise sanctioned
for such decision, which should likewise lead to reconsideration of the case by
new judges.
Thus, the Legal Ombudsman proposal responds
to the problem that in Ukraine there is virtually no independent, legally
authoritative outside review of complaints on Ukrainian court decisions, based
on which remedial action can reasonably be demanded and taken. The
proposal is not trying to create a parallel appellate court. The Legal
Ombudsman will not be involved in close cases, where there are good legal
arguments on both sides, and a decision is taken by a court. Instead, the Legal
Ombudsman will act where clearly there has been abuse, objectively viewed,
based on a judicial decision without any genuine legal basis. There continue to
be many such “denial of justice” decisions by Ukrainian courts, often depriving
investors of significant property.
This Legal
Ombudsman proposal also does not imply that the Legal Ombudsman will replace
police and prosecutorial authorities, which will continue the difficult task of
catching improper payments to and other improper influences on judicial
officials. However, it is rare that such improper influences can be proven,
whereas their consequences, judicial decisions that have no genuine legal
basis, can be readily analyzed and exposed. Consequently, the Legal Ombudsman
does not replace any appellate, police or other supervision of judicial action
– it is in addition to it. Unfortunately,
so far the Ukrainian judicial system has failed to prevent such denials of
justice by courts, so the addition of the Legal Ombudsman as an outside expert
legal review body is necessary.
The Legal Ombudsman proposal therefore focuses
on legally analyzing complaints on judicial decisions, to confirm the absence of
genuine legal justifications or the decisions, as a basis for disciplining the
judges responsible and obtaining proper judicial review of such decisions. As
noted, the proposal is based on the Swedish legal ombudsman, the first
ombudsman, who in the early 1900s rapidly changed Swedish courts from being
among the most corrupt in Europe to becoming the least corrupt.
It worked in Sweden in similar circumstances – it can work in Ukraine.
To
rebuild the confidence of investors for Ukraine, we propose (1) for the
Ukrainian Legal Ombudsman to be appointed by an association of Ukrainian
chambers of commerce and business associations, such as the proposed Council of
International Business Organisations,
(2) for him or her to lead a non-governmental organization (“NGO”), based as an
autonomous body at a leading academic institution like the Koretsky Institute
(a part of the Ukrainian Academy of Science), a principal legal adviser to
Parliament with excellent legal resources, and (3) for an arrangement to be
made with Parliament, the High Council of Justice and the Presidential
Administration for expedited consideration of reasoned and supported opinions of
the Legal Ombudsman on judicial decisions found to constitute denials of
justice, as a basis to dismiss or otherwise discipline the judges involved and
facilitate immediate re-hearings of the decisions.
Such
disciplining of judges is consistent with the constitutional separation of powers
– it does not violate this principle, but instead reinforces it. Every
constitutional system in the world provides for cross-supervision by the
different branches of government. The judicial branch reviews the
constitutionality of laws adopted by Parliament and decides on their
application, and the legislative and executive branches review the performance
of judges and, in appropriate cases, dismiss or otherwise sanction them. This parliamentary
and executive power exists in Ukraine (including with the High Council of
Justice), but it is not adequately used.
The Legal Ombudsman will facilitate the proper supervision of the judicial
system.
Conclusion – the Legal Ombudsman Is
Greatly Needed and Can Be Readily Established
Thus,
by building on the Open Court initiative and
focusing on the behavior of judges, in particular in their written decisions
where a denial of justice is found, judges can be removed, judicial decisions can
be reconsidered and the specially urgent denial of justice problem in Ukraine
can be effectively addressed. This is an
important problem in Ukraine – there have been hundreds of denial of justice
cases in Ukraine where significant investor property has effectively been
stolen with judicial complicity, greatly harming Ukraine’s reputation as an
investment destination. No other anti-corruption initiative proposed so far
will address this denial of justice problem.
The
success of the Legal Ombudsman proposal presently also depends on adequate
western support being found, as was done by the EBRD to organise the
implementation and fund the operation of the office of the Business Ombudsman.
Until the west similarly addresses denial of justice corruption by courts, it
cannot claim to be doing what is needed to help Ukrainian civil society respond
to entrenched judicial corruption. With such western support, the Legal
Ombudsman could be quickly created. The BUCC is confident, based on discussions
so far, that the leaders of Ukraine’s judiciary, as well as the Parliament and the
Presidential Administration, will support effective implementation of the Legal
Ombudsman proposal when it goes forward.
Although certain supplemental
legislation could be helpful to allow judges to be more easily disciplined, no
new legislation is actually necessary to begin implementation of the Legal
Ombudsman proposal. As
observed above, the Ukrainian Legal Ombudsman can presently be established
based on existing Ukrainian legislation, in particular that on the
dismissal of judges who violate their judicial oath by deciding cases clearly
contrary to Ukrainian law. The Ukrainian judicial system greatly needs such a Legal
Ombudsman to provide independent authoritative expert legal review to establish
confidence in the Ukrainian judiciary for investors as well as civil
society.
