Toms pro­poses le­gal om­buds­man as fix to Ukraine’s cor­rupt ju­di­cial sys­tem

Kyiv Post Legal Quarterly - - Contents - By Olena Gon­charova gon­charova@kyivpost.com

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.

Newspapers in English

Newspapers from Ukraine

© PressReader. All rights reserved.