The ‘Inside-Out’ Approach to Fair Justice in Ukraine. Oleksandr Mamunya Opinion

The judicial system of Ukraine is seen as totally corrupt, so the role of skilled Ukrainian litigators is significantly underestimated and their reputation is heavily damaged. Therefore, the dispute parties rarely choose to use such instruments electing instead to complain of the court corruption. However, a lot depends on us. If we believe in changes and apply appropriate efforts, the whole system will gradually become more fair.

As a Ukrainian legal practitioner, I am frequently told by different people, sometimes even by those who have never faced Ukrainian courts, that there is no sense to litigate in Ukraine since the judicial system is totally corrupted and any judgment is normally based on some “extralegal” arguments rather than on the law. In view of this, the role of skilled Ukrainian litigators is significantly underestimated and their reputation is heavily damaged. This, in turn, affects the investment climate sending wrong signals to investors that there is no fair play at all in Ukrainian courts. However, the above understanding is very simplified and definitely not correct.

In addition to those who really suffered from unfair justice in Ukraine, the above vision is normally disseminated by the indecent Ukrainian attorneys that were not good enough to win a case with reasonable chances of success. This idea is also shared by those who perform representation in courts having no legal background and thus who were not capable to deliver high quality court representation. Very frequently Ukrainian politicians manipulate using the term “corruption in courts” when an outcome of the court proceedings does not meet their expectations. Businessmen who due to some reasons have missed their chance to apply to Ukrainian court, and in this respect suffered damages, can sometimes justify their failure by the above “total corruption” argument. Actually, any party having weak legal standing or who failed in the court may refer to the “corruption” issue to justify their failure.

It would not be fair to say that there is no corruption in Ukrainian courts. However, different types of matters are exposed to the corruption to different extent. For example, intellectual property (IP) disputes are generally less corrupted in Ukraine than, for example, property disputes, especially when the amount at stake is significant. This is the case because normally no thing, or relevantly small amounts are claimed in the IP disputes, and frequently reputable foreign companies that are subject to anti-corruption compliance are engaged. However, sometimes it is quite difficult to receive a fair judgement in the disputes either due to the corruption or due to lack of expertise and experience of the judge in the respective domain. The latter issue is relevant to all the cases requiring certain specific knowledge, e.g. disputes over securities and in the financial area, IP disputes, antitrust litigation etc. Tax disputes are notorious for being difficult to win, however it is apparent that the judges are motivated not by direct pecuniary gain, but administrative pressure. Generally, the bigger amount of money/piece of property is at stake the higher risk of corruption and unfair justice.

At the same time, parties often do not do what it takes to win or at least lose gracefully, retaining a chance of reversing the verdict. In any case, any person who has reasons to think that the justice is unfair has legal instruments to hold the judge liable and/or influence the unfair court proceedings in a lawful way. However, the dispute parties rarely choose to use such instruments electing instead to complain of the court corruption. One may appeal, for example, to the Supreme Qualifying Committee of Judges or the Supreme Council of Justice that consider claims against judges. Certainly, to reach success in this you should do everything properly: carefully collect proper and relevant evidence of the judge’s misdeed, know and comply with the specific procedure, be aware of and use alternative ways to prove unfair justice, e.g. through the Prosecutor’s Office, etc. To be successful in this, one should have necessary legal expertise and experience or a skilled professional attorney as a representative, and, certainly, he will have to fight corruption in courts and pay the price of doing it – in terms of money, efforts involved and, at times, higher exposure.

Therefore, a lot depends on us – if we believe in changes and apply appropriate efforts, the whole system will gradually become more fair and uncorrupted, and if we fail to change ourselves, and the most inner part of ourselves – the paradigm, everything will remain the same or become even worse.

Vox Ukraine