Toms proposes legal ombudsman as fix to Ukraine’s corrupt judicial system
Few Ukrainians trust the police, prosecutors and judges who form the nation’s judicial system, according to every respectable poll taken. The solution? A legal ombudsman. That is the answer touted by Bate C. Toms, an American lawyer and chairman of the British-ukrainian Chamber of Commerce. The ombudsman would review court decisions, write explanatory opinions and make advisory reports to parliament.
“That’s what we want – to take (their reports) to parliament and have parliamentary committees then consider impeachment of judges who render judgements that are indefensible,” Toms explained in an interview with the Kyiv Post.
At the moment, complaining even at the highest level doesn’t bring results as government claims to be unable to review and decide because officials are not lawyers.
Giving such power to an eminent jurist, selected by a nongovernmental organization created by leading business associations, would clean up the courts in a matter of months, Toms claimed.
Restoring trust to the judicial system is key to reviving private investment in Ukraine.
“Even more than war, we see foreign investment blocked abroad as there’s total underconfidence in Ukrainian courts to fairly rule on cases as the decisions have no conceivable basis in law,” Toms says.
While a court system should be a separate branch of government, checks and balances from other branches are essential to holding all of them accountable.
Separation “doesn’t imply that each branch can’t review each other,” Toms said. “It’s all about checks and balances. In America, you can impeach a judge and in Ukraine, you can do as well. That’s what the legal ombudsman is based on,” Toms said.
Toms said the ideal ombudsman would be a jurist from outside the current legal system whose institution is funded by Western sources. The legal ombudsman, as well as the judges, should be paid well, so they can live reasonably.
“Everybody understands the cost of underpaying judges – it stimulates corruption,” Toms said. Toms is trying to build support for the idea. “This country could become so rich and grow so quickly if we had reasonable rule of law. In today’s situation this one should work,” Toms said. “This is different from business ombudsman – it’s a lawyers’ lawyer. He’s there to intercept gross abuses of justice and stop decisions that have no genuine legal basis.”
Toms said he can set up the institution within six months and has some candidates in mind for the post.
Alina Sviderska, a lawyer and a project manager with Easybusiness organization, said the idea of creating a legal ombudsman is a timely one.
“The legal ombudsman could be like the Venice Commission for business and the government organizations to address to,” Sviderska told the Kyiv Post. “But it will require political will to listen to such an ombudsman as we know certain cases have been reviewing for years in Ukraine due to political pressure.”
It won’t be the cure-all, however, as the country still needs qualified investigators overseeing judges and many fixes to the rest of the criminal justice system, including an overhaul of investigative bureaus and the General Prosecutor’s Office.
Introduced in Sweden in the early 20th century, legal ombudsman helped transform the country from being the least corrupt and the most prosperous nation, Toms said. "It will work in today’s Ukraine,” he said. “Nothing else will improve the court system."
The legal ombudsman, combined with other reforms, will help assure investors that court rules can be satisfactorily justified under the law, according to Toms.
Toms also has been pushing for wider availability of political risk insurance, through a branch of World Bank, and the Overseas Private Investment Corporation, a U.S. government finance institution.
“Without increased investment, this country will have difficulties surviving,” Toms said. “We’re in emergency situation. We need it immediately.”
Toms is also an adviser to Education Minister Serhiy Kvit and wants British and American laws schools to set up law programs with universities in Ukraine.
“One of the problems in legal education in Ukraine is that the number of scholarships abroad for Ukrainian law students have been drastically cut. People can no longer afford to go abroad for education,” Toms said. Therefore, he said, it’s more economical to bring in professors from abroad.