Could a judicial mediator help resolve rule of law issues in Ukraine?
Ukraine should have a bright future as Europe’s leading agricultural producer and growing IT power. However, corruption continues to hold back this progress.
US Secretary of State Blinken acknowledged this during his visit to Ukraine in May, when he said that “the effective fight against corruption is one of the most important issues for the Ukrainian people and is crucial for improve his life ”. The British Ambassador to Ukraine also recently highlighted the role of Ukraine’s rule of law issues in the trade and investment depression for Ukraine.
This corruption is rooted in Ukrainian courts. As the president of the American Chamber of Commerce recently said, “The justice system is absolutely rotten to the bone. This is the reason why investors hesitated.
One possible solution to this problem is the creation of a Ukrainian judicial mediator, acting as a prosecutor to ensure judicial control. Such an ombudsperson was used successfully to bring about a systemic reform of the Swedish judicial system in a similar situation at the beginning of the previous century, and continues today to supervise the Swedish courts.
To implement this proposal, the Ukrainian Judicial Ombudsman should be established by a statute which could provide for candidates for the post to be appointed, for example, by a representative group of Ukrainian and bilateral chambers of commerce and trade associations (to encourage investors), together with a committee of the Ukrainian parliament, the candidate then being appointed by the president or the parliament.
There should also be supporting laws adopting criminal law standards for judicial behavior. Under the Ukrainian Constitution, judges are not immune from the application of criminal law. In particular, these laws should criminalize material misconduct of judges. This could follow the “denial of justice” standard applied under Ukraine’s Bilateral Investment Treaties (BITs) under which many foreign investors have initiated arbitration proceedings against Ukraine to seek redress from the judgments. unjustified grounds of Ukrainian courts.
The problem with the right to bring such BIT investment treaty arbitration cases is that they offer little practical protection to most investors in Ukraine, as such a procedure can take five years or more to exhaust the local remedies and then conduct arbitration, which is usually very expensive. Ukraine has a poor record in paying its obligations under such arbitral awards. BITs also do not protect domestic investors.
Subscribe to the latest news from UkraineAlert
UkraineAlert is a comprehensive online publication that regularly provides news and analysis on the development of politics, economy, civil society and culture in Ukraine.
Unfortunately, no reform yet undertaken or proposed in Ukraine has effectively addressed the country’s rule of law problem. Instead, the limited reforms so far have focused on restructuring some courts and replacing some judges, while failing to address the systemic causes of long-term corruption.
Often a newly appointed “reformer” judge simply profits by fitting into a well-established system of corrupt expectations. In order to protect the independence of the Ukrainian judiciary, the Ukrainian Constitution has largely removed it from scrutiny as a closed system, from the lower courts to the High Council of Justice, protected beyond what is actually necessary or appropriate for judicial independence.
In addition, Ukrainian criminal law does not impose the appropriate criminal law standards for good judicial conduct, due to the poorly reasoned decision of the Ukrainian Constitutional Court of 2020 declaring Article 375 of the Criminal Code void which created penalties for misconduct.
After years of corruption within this closed system, the replacement of courts and judges is akin to the proverbial change of deckchairs on the Titanic. What the Ukrainian judicial system needs is systemic change to fundamentally revise expectations, improve the conduct of Ukrainian judges and change the focus of the judicial system by ensuring swift oversight of judicial decisions in response to complaints and by creating criminal prohibitions on misconduct.
For Ukraine, preventing erroneous court rulings that constitute denials of justice, especially those that dispossess investors, is the most important improvement in the judicial rule of law.
Too often, complaints about judgments that are parodies of justice make their way through the Ukrainian court system and sometimes continue until the end of BIT arbitrations (if the dispossessed investors have enough money and time to persist) , while judicially stolen goods and businesses disappear into the possession of others, never to be recovered regardless of any outcome of a court or arbitration. For most countries such cases of denial of justice are rare, but for Ukraine they are quite frequent.
The pronouncement by Ukrainian judges of a judgment without any real legal basis, a “denial of justice” within the meaning of the BITs, is a serious fault which should constitute a crime. Failure to properly review the judgment in response to the opinion of the judicial mediator should lead to prosecution of the judges responsible by the judicial mediator in the High Anti-Corruption Court of Ukraine.
It should not be necessary to detect bribes actually paid in order to prosecute judges for clearly wrong decisions, especially since the detection of secret bribes is usually almost impossible. Instead, it should suffice to determine criminal liability for such misconduct by focusing on the actual actions of the judges.
To facilitate this, Ukraine also needs criminal sanctions for judicial misconduct which can be applied by the judicial mediator. This is similar to the malpractice criminal liability rules of many other groups, such as architects and physicians.
The proposed Ukrainian judicial mediator, in response to a complaint from a litigant, would first issue an opinion or a reprimand. This would allow judges to reconsider their erroneous decision, with prosecution to follow if the decision is not properly corrected.
In Sweden, most decisions that the country’s “ombudsman for justice” deem to be wrong are voluntarily reviewed by judges. Likewise, the Ukrainian judicial mediator would protect against judicial misconduct.
To be effective, the Ukrainian judicial mediator must be someone of the highest legal competence and of impeccable integrity, able to quickly analyze court judgments and draft legal opinions which must command universal respect as being properly motivated. There are a number of highly qualified Ukrainian and foreign legal experts with knowledge of Ukrainian law who could serve Ukraine as judicial ombudsperson.
To be clear, the Ukrainian judicial mediator would not function as another court, but only as a check against miscarriages of justice in order to obtain a swift review of erroneous judgments which constitute “denials of justice” in a few months rather than in years, and before business the property concerned is irretrievably lost.
Ukraine clearly needs new solutions to solve the country’s rule of law problems. Another reorganization of the courts or the replacement of judges, in itself, is unlikely to bring more than previous efforts.
The implementation of the idea of the Ukrainian judicial mediator could help to transform Ukraine from being a center of judicial corruption to that of a model, as Sweden has become, in matters of good judicial conduct. This would pave the way for investment and allow Ukraine to finally realize its economic potential.
Bate Toms, JD Yale Law School, is President of the British and Ukrainian Chamber of Commerce (BUCC) and Managing Partner of the Kiev office of the law firm BC Toms & Co.
Tue 9 Feb 2021
Kremlin TV chief: Russia must annex eastern Ukraine
Kremlin TV chief Margarita Simonyan called on Russia to annex the Donbass region in eastern Ukraine in a recent high-profile forum that reported an escalation in the Hybrid War of Seven years of Moscow against Ukraine.
Thu, May 6, 2021
Naftogaz fiasco threatens to undermine Ukraine
The recent decision to suspend Naftogaz’s supervisory board and fire CEO Andriy Kobolyev risks undermining Ukraine’s security and exposing the country to greater dependence on Russian gas.
The opinions expressed in UkraineAlert are solely those of the authors and do not necessarily reflect the views of the Atlantic Council, its staff or its supporters.
the Eurasia Center mission is to strengthen transatlantic cooperation by promoting stability, democratic values and prosperity in Eurasia, from Eastern Europe and Turkey in the West to the Caucasus, via Russia and Central Asia to the East.