Bilateral Treaties on Legal Aid as an Example of Unification of International Civil Procedure

A bilateral treaty on legal assistance is not diplomatic formality but a working instrument: documents are served under it, evidence is taken, witnesses are summoned, judgments are enforced. The difficulty is that each treaty was drafted separately, so what works with one state may not work at all with another.

This paper examines the structure and scope of Ukraine’s legal assistance treaties and, above all, what they are missing compared with the multilateral conventions. Published in the Bulletin of the Supreme Court of Ukraine, No. 1(137), 2012, pp. 43–48.

In short: witness and expert immunity under Ukraine’s bilateral legal assistance treaties runs from 7 to 20 days, and the period must be checked in the specific treaty text. No treaty contains anything comparable to Articles 15 and 16 of the 1965 Hague Convention, so a judgment obtained in the defendant’s absence may fall apart when enforcement is attempted.

The most practical part of these treaties is the immunity of a witness or expert who travels to the other contracting state to give evidence. Without it, no witness travels.

• a witness or expert may not be prosecuted, detained or otherwise restricted in personal liberty for acts preceding their departure from the requested state;
• the immunity runs for a limited period — from 7 to 20 days depending on the particular treaty;
• it lapses if the person remains after that period, having been able to leave, or returns to that state;
• travel and stay are paid by the requesting state.

The difference between 7 and 20 days is the difference between a workable examination and a witness losing protection through logistics alone. The period is a matter for the specific treaty text, not a general rule.

What the treaties contain. They reflect modern practice: Central Authorities as the principal channel; the executing court applies its own procedural rules but may, at the requesting body’s request, follow the procedure that body specifies; there is a duty to notify the place and time of the action.

What they lack — the paper’s central finding. The treaties omit many rules that are treated as generally accepted and appear in the multilateral conventions:

• a number of treaties contain no provision at all allowing diplomatic or consular officers to serve documents on their own nationals residing in the other contracting state, or to take evidence from them;
• many do not prohibit the judicatum solvi requirement — security for costs demanded of a foreigner — and those that do fail to provide the simplified enforcement of costs decisions that the 1954 Hague Convention offers;
• no treaty contains anything comparable to Articles 15 and 16 of the 1965 Hague Convention on the legal consequences of service on a person abroad who did not appear.

The last is the dangerous one in practice: that is precisely where a judgment obtained in the defendant’s absence falls apart when enforcement is attempted.

The paper closed with a thesis: Ukraine should consolidate its own treaty-making experience, compare it with other states’ practice, and develop a reasoned approach — and the English summary pointed directly to the necessity of concluding legal assistance agreements with developed countries.

Fourteen years on, that gap has closed — but by a different route than the one proposed. Instead of new bilateral treaties, Ukraine joined the multilateral Hague machinery:

• 2005 Choice of Court Convention — instrument of ratification deposited 28 April 2023, in force for Ukraine since 1 August 2023;
• 2019 Judgments Convention — instrument of ratification deposited 29 August 2022, in force between Ukraine and the EU member states (except Denmark) since 1 September 2023.

What the author proposed to achieve through dozens of bilateral negotiations, Ukraine obtained by acceding to conventions to which those same developed states are parties.

To the east the map narrowed. The 1993 Minsk Convention ceased to apply to Ukraine (Law No. 2783-IX of 1 December 2022), as did the 1992 Kyiv Agreement (law of 12 January 2023). Bilateral treaties with Latvia, the Czech Republic, Romania, Poland, Turkey and others remain in force, and the analysis of their gaps holds.

Tsirat G. A. Bilateral Treaties on Legal Aid as an Example of Unification of International Civil Procedure // Bulletin of the Supreme Court of Ukraine. — 2012. — No. 1(137). — pp. 43–48. Full text in Ukrainian: original article (PDF, 6 pp.).