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.
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.
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