Ukraine needs a judicial ombudsman to solve its corruption problem

This is the theory of Bate C. Toms, Chairman of the British-Ukrainian Chamber of Commerce.

 

HRWF (25.09.2020) – In various articles and webinars, Bate C. Toms, Chairman of the BUCC (Managing Partner of B C Toms & Co, Kyiv and London; JD Yale Law School and MS Yale Graduate School) has shared his views about the inefficient fight against corruption in Ukraine and made a number of recommendations to solve this problem. Here is what he said in an article titled “Recommendations to resolve key problems and protect investors in Ukraine” published by Kyiv Post on 11 September.

The Judicial Ombudsman Proposal: Ukraine needs real judicial reform to fight corruption – not another bogus reorganisation

 

Recent statements published in the KyivPost by a number of political science and economics (but not legal) experts have called for another reorganization of the Ukrainian court framework in response to accusations of court corruption. While Ukrainian courts still have some problems, the last thing the judiciary needs is yet another attempt to revise the number of courts and judicial positions, as apparently one elite tries to replace another, moving positions around without any meaningful systemic reform to actually address corruption. As we earlier predicted, many of the reforms previously adopted to supposedly fight court corruption were superficial and generally unsuccessful – it is time for a different approach.

 

What is needed instead is true systemic reform that actually addresses the key issue – which is the content of judicial decisions affecting litigants. The BUCC’s proposed solution is to create a Ukrainian judicial ombudsman (sometimes referred to as a “legal ombudsman”) to respond to the critical problem facilitating corruption in Ukraine, which is the total absence of any independent systematic outside oversight over what courts actually do, i.e. of the quality of their decisions. The judicial ombudsman is a “silver bullet” solution that should be relatively simple to implement and that would fundamentally forever improve the Ukrainian judicial system. By creating a judicial ombudsman similar to that in Sweden to investigate decisions that are claimed to not be properly based on applicable law, either due to corruption or incompetence, litigants would be protected from much of the gross corruption of the sort used to dispossess investors in Ukraine, that has resulted in so many bilateral investment treaty (“BIT”) arbitrations for Ukraine. In the early 1900s, Sweden courts were also perceived as being among the more corrupt in Europe, but their judicial ombudsman put their courts onto a completely different course. Ukraine has the potential now to develop, as Sweden has, into a model country, both for commerce and for justice, which are, of course, somewhat linked.

 

Are court decisions properly decided in accordance with law, or do they constitute “denials of justice” (defined, inter alia, as whenever a court fails to observe its duty to decide a case in accordance with law, and instead renders a decision for which there is no reasonable legal basis)? While this standard is applied for Ukraine with respect to foreign investors under the typical BIT, our proposed judicial ombudsman would apply this standard to all litigants, based also on the Ukrainian judicial oath of office under Article 126 of the Constitution that a judge may be dismissed for failing to “objectively, impersonally, impartially, independently and fairly administer justice, complying only with the law, to honestly and faithfully perform the duties of a judge”.

 

The BUCC has several variations for this judicial ombudsman proposal (which we will elaborate on in subsequent articles) – the critical decision now is to adopt the principle for the creation of such an ombudsman to be available to review judicial action in response to complaints by litigants. The ombudsman we propose should be able to: (1) send decisions that he or she finds constitute denials of justice, at any judicial level, back for reconsideration by different judges, and (2) recommend that those judges adopting such denial of justice decisions be investigated and possibly lustrated for cause (i.e. for breach of their oath of office, rather than dismissed because of some criterion not relevant to judicial performance).

 

The proposed judicial ombudsman would therefore provide for a relatively quick review at any judicial level. It would not act like another court to decide cases itself – but rather would provide an independent outside review of the legal basis for a judgment and, where appropriate, recommend a rehearing. This is similar to how BIT arbitration tribunal functions, but a BIT tribunal cannot act until all domestic court appeals are exhausted, which can take two or more years, and the full arbitral process itself to render a final award can take a further three to four years.

 

For most investors, such a full BIT arbitration process takes too long to protect their investment and costs too much, typically many millions of US dollars. Usually, even where eventually a denial of justice is found in a BIT cases, it is too late for the authorities to discipline the judge for improper behaviour. The BUCC’s proposed judicial ombudsman would be available to react quickly to decisions at any court level at the request of any litigant (foreign or domestic) in time to save the litigant’s property before it is sold on or otherwise destroyed in value. This ombudsman’s decision would function, in effect, only as an interim review to safeguard the litigant’s position, and not as a definitive judgment, with the courts then reviewing in detail the problems identified by the ombudsman.

 

Such judicial ombudsman review should effectively block corporate raiders from quickly using the Ukrainian courts to effectively steal investor property based on claims made without any genuine legal basis – the most serious court corruption problem currently for the members of the BUCC and other international chambers that invest in Ukraine. For this proposal to work, of course, the person selected to be the ombudsman needs to be someone universally respected as an incorruptible legal expert at the highest level. As for the very effective Ukrainian Business Ombudsman, the appointee might be an eminent foreign legal authority (like the former judges and other legal experts typically appointed to BITs arbitration tribunals), which should help, in particular, to restore foreign investor confidence in the Ukrainian courts.

 

Thus, rather than needlessly take apart and reorganise the existing Ukrainian judicial system, that will take many more years, will slow down the disposition of existing cases harming litigants while this is on-going and is unlikely to help fight corruption (as the previous reorganisation reform has shown), Ukraine needs systemic reform that addresses the lack of any independent outside oversight of the Ukrainian judiciary to remedy denials of justice that result from corruption or incompetence – i.e. a reform that focuses on what courts actually do in actual cases, and responds to denials of justice for actual litigants, in reality rather than only in theory. This is currently done for foreign investors by the BIT arbitration process (and sometimes by the European Court of Human Rights), but as noted, only after exhaustion of remedies in Ukrainian courts, so it typically takes five to eight years, which is too late to help most investors, and the process is very expensive, so only very large litigants can ordinarily afford to use such BIT arbitration. Consequently, the BIT protections do not sufficiently encourage most potential investors that they will be adequately protected legally in Ukraine.

 

Instead, Ukraine needs a reform to provide judicial oversight by allowing the rapid review of judicial decisions in response to complaints by litigants made to an independent legal authority, the judicial ombudsman, so that neither corruption nor incompetence can have a decisive influence on the decisions of judges to deprive investors of property – the critical problem presently. The judicial ombudsman that we propose should block court decisions effectively dispossessing investors and others of property without a genuine legal basis.

Previous articles on the BUCC’s Ombudsman proposal can be found at: 

 

https://bit.ly/3045iQY

 

https://bit.ly/2EwKcmM

 

https://bit.ly/3kH9UEv




IRAN: Christian convert released on bail after two months in prison

Article18 (23.09.2020) – https://bit.ly/2RTy7Lt – An Iranian woman convert to Christianity detained since her arrest at the end of June has finally been released on a reduced bail.

 

Article18 understands that Malihe Nazari, who is 46 years old, was released from Qarchak women’s prison, south of Tehran, on 5 September.

 

Some reports claimed her bail had been reduced to 300 million tomans (around $15,000) – only a tenth of the initial demand of 3 billion tomans – though an Article18 source suggested the final amount was actually closer to 1 billion.

 

Malihe was one of at least 35 Christians arrested or interrogated following coordinated raids on the homes and house-churches of Christians in Tehran, Karaj and Malayer on 30 June and 1 July.

 

Most were released in the days after, either without charge or on bail after being charged with “acting against national security by promoting Zionist Christianity”. Some of those arrested have been sentenced already, although details have yet to emerge.

 

But Malihe and Iranian-Armenian Christian Joseph Shahbazian, 56, were held for longer and initially both told they must each pay 3 billion tomans (around $150,000) to secure their temporary release – twice the previous highest amount demanded to secure the release of a Christian prisoner of conscience.

 

Joseph was eventually released on a slightly reduced bail of 2 billion tomans on 22 August, but Malihe’s situation has remained unclear until now.

 

Malihe, who is married with two sons aged 22 and 15, was arrested on the evening of 30 June at her home in the Sadeghiyeh district of Tehran.

 

Her house was searched and several of her personal belongings confiscated, including her computer, mobile phone and a number of books.

 

The agents then took Malihe away, and told her family she would be taken to Evin Prison.

 

When they went to visit her at the prison the next day, they found Malihe’s name on the list of detainees but weren’t able to see her, although the following day she was able to briefly call home to say that she was OK.

 

She was then transferred to Qarchak, where there were fears for her wellbeing after an outbreak of coronavirus.

 

Dozens of other women reportedly caught the virus in the prison in recent months, while there have also been outbreaks in several of Iran’s other overcrowded prisons, including Evin, where one Christian convert tested positive last month and three others displayed symptoms.

 

Malihe is a member of a women’s-only house-church known as “Yek Delaan” or “One Heart”, which has dozens of mostly middle-aged members.

 

Her eldest son has been battling with cancer for the last two years.




CHINA: Uyghur Forced Labor Prevention Act

U.S. House of Representatives House passes legislation to crack down on business with companies using China’s forced labor. HRWF welcomes the House of Representatives’ passage of the Uyghur Forced Labor Prevention Act and calls upon the European Union to take a similar initiative.

 

House passes legislation to crack down on business with companies that utilize China’s forced labor

 

By Juliegrace Brufke

The Hill (22.09.2020) – https://bit.ly/33Vzb6Z – The House on Tuesday overwhelmingly passed legislation aimed at tamping down the exchange of goods made in forced labor camps by Uighur Muslims in China’s Xinjiang region.

 

The  Uyghur Forced Labor Prevention Act — introduced by Rep. Jim McGovern (D-Mass.) and passed in a 406-3 vote — would “prevent certain imports from Xinjiang and imposing sanctions on those responsible for human rights violations” from the region.”

 

Lawmakers on both sides of the aisle have stressed the need for the U.S. to take action to combat the human rights abuses in China.

 

“It is time for Congress to act. Over the past several years we have watched in horror as the Chinese government first created and then expanded a system of mass internment camps,” McGovern said on the floor ahead of the vote.

 

“As many as 1.8 million Uighurs and members of other predominantly Muslim ethnic minority groups have been arbitrarily detained in the camps and subjected to forced labor, torture, political intimidation, and other severe human rights abuses.”

 

Rep. Michael McCaul (R-Texas) likened the abuses to what was seen in concentration camps in Nazi Germany.

 

“In July. U.S. Customs and Border Protection seized a 13-ton shipment of human hair. Madam Speaker, human hair that originated in the forced labor system,” he said on the floor.

 

“We haven’t heard about human hair since the nazis in the concentration camps of the war that my father fought in, World War II. It’s brazen and sickening. We must refuse to be complicit financially or otherwise. And the CCPs crimes against the Uighurs, the Muslim Uighurs, for that reason I support this bill before us today.”

 

The House is also slated to pass legislation that would require publicly traded companies in the United States that do business within the region to disclose information on their supply chains and whether their products are made by forced labor.




45% of Ukrainians will fall below actual poverty level in 2020: study

An elderly woman begging for money in central Kyiv, 2018. Photo by Oleg Petrasiuk

By Igor Kossov

 

Kyiv Post (18.09.2020) – https://bit.ly/3hTa2z2 – Close to half of Ukrainians will experience poverty in 2020, according to a study by the M.V. Ptukha Institute of Demographics and Social Research.

 

Even though the study was published in June 2020, it only recently came to public attention.

 

The study defines poverty as one’s living conditions being below the actual minimum subsistence level, which varies between an average of Hr 3,237 and Hr 3,636 ($115-130) per person during the first nine months of 2019.

 

The “actual” minimum subsistence level defined by the study is much higher than the legally defined average of Hr 2,118 ($75) established in June.

 

The COVID-19 crisis reversed the last few years’ trend of stable or declining poverty, according to the research. By last year’s predictions, the poverty rate was supposed to be 31.2% in 2020.

 

Instead, it will be closer to 45%, which is more than 18 million Ukrainians. This is 6.5 percentage points higher than last year’s poverty rate of 38.5%. It also means a 17% increase in the total number of Ukrainians in poverty.

 

The year 2018 and the first three quarters of 2019 showed a decline in both absolute and relative poverty, meaning that fewer Ukrainians were poor and lower income Ukrainians began to experience better living standards. The institute expected the trend to continue this year.

 

“However, in 2020, events are unfolding in such a way that the achievements of the last three years may be wiped out entirely,” the research paper stated.

 

Lyudmila Cherenko, head of the institute’s living standards department, last week told Ukrainian Radio that the number of people living in poverty has increased by 2 million to 16.5 million Ukrainians just in the first quarter, even before the COVID-19 quarantine was fully implemented.

 

She also warned that the past few decades have seen a stagnation in income distribution, on top of a growing income gap.

 

According to the institute’s survey, 60% of respondents said they had financial losses – 38% had a decline in regular income, 16% lost income entirely and 14% lost their jobs. Households with multiple children have been hit the worst.

 

The results reflect May findings by the Ministry of Social Policy, which also estimated that the poverty rate will increase to 45% in 2020.




UKRAINE: Average salary: 350 EUR – Average pension: 90 EUR

Prime Minister Shmyhal: average wage of UAH 15,000 (450 EUR), average pension of UAH 5,000 (150 EUR) is the goal we must pursue

Ukrinform (05.09.2020) – https://bit.ly/2RO2J0Z –  Prime Minister of Ukraine Denys Shmyhal believes that an average wage of UAH 15,000 and an average pension of UAH 5,000 are sufficient for life.

 

“UAH 15,000 is the average wage, and it would be good to have an average pension of at least 30% of it. Speaking specifically, the average wage of UAH 15,000, the average pension of UAH 5,000. This is the goal which we should pursue. Do not take this as a promise, take it as the parameters we are striving for,” Shmyhal said on the air of Ukraina 24 TV Channel, asked what the average wage and the average pension should be in Ukraine to have enough for life.

 

The prime minister noted that today the average wage is UAH 11,000, and the average pension is UAH 3,000.

 

“Probably this is not enough, I would like Ukrainians to receive more decent wages and pensions,” Shmyhal stressed.

 

HRWF Comment

 

One can wonder if such a Prime Minister saying a pension of 150 EUR per month would be sufficient to live deserves his position. This amount is not even sufficient to pay the bills for heating, electricity, water and other utilities.

 

Currently, the average pension is around 90 EUR, much lower than what he says.

 

Poverty of Ukrainian citizens is the price they pay in their daily lives for the unsolved corruption problems in government, parliament, judiciary and business since the independence.