Prof. Ekaterina Mishina remembers the 1993 reintroduction of trial by jury, and explains why the jury trials affect the destiny of the still young Russian civil society.
Ten years ago, I was asked to prepare a rather unconvincing document, arguing that one of the drivers for the telecom company where I was employed as a lawyer had no time to fulfill his civic duty as a juror. I did a bad job trying to prove that driving one of the company officials around Moscow was more important than taking part in the administration of justice. Attempting to save face, I asked the driver why was he trying so hard to avoid jury duty, especially since his boss never vetoed the idea. I tried changing his mind and overriding his reluctance. In response, the driver gave me a sad look and asked: “But why would you think I’d have any impact on the trial’s outcome?” This answer is typical for someone who has never served as a juror. Anyone who had would think differently.
The reintroduction of trial by jury, perceived by many as the cornerstone of Russian judicial reform, took place even before the new Russian Criminal Procedural Code was adopted. Jury trials were, in fact, instituted on July 16, 1993, when amendments were made to the Soviet Law on Court Structure and the Soviet Criminal Procedural Code. The aim was to free the justice system from political control, to promote an adversarial procedure, to eliminate the courts’ strong bias in favor of prosecutors (characteristic for the Soviet neo-inquisitorial system), and to bridge the gap between individuals and legal institutions.
Expectations for the new system were high. As Sergei Vitsin, deputy chair of the Presidential Council for the Improvement of the Justice System put it: “When we developed the concept of judicial reform in Russia, one in which jury trials played an important role, we believed that all the conditions were ripe for this institution to become as important as it was in pre-revolutionary Russia.”1 However, the expense and complexity of the new system forced reformers to seek compromises by limiting the jurisdiction of jury trials to regional and territorial courts and only in the case of the most severe crimes (i.e. murder, rape, terrorism, and crimes against the state).
It was decided that the system should first be introduced as a pilot project in the following nine regions: Saratov, Ryazan, Ivanovo, Ulyanovsk, Rostov, Moscow, Stavropol, Altai, and Krasnodar. Budgetary constraints were among the reasons most frequently cited by those who opposed the reintroduction of jury trials. This was the excuse frequently used by representatives of judicial and governmental agencies, who stated that they would otherwise completely support the new system. Problems with financing continued to hamper the extension of jury trials even to the regions that were eager to introduce them.2
Due to these and other factors, the introduction of the new system did not go as smoothly as reformers had hoped. In the fall of 1995, the State Duma considered a draft law, which would expand the jury trial system to another twelve regions, and, once again, the issue of financing came up. The government actively opposed the expansion, citing budget issues. Although almost twenty regions supported the introduction of jury trials, the system was not introduced beyond the initial nine regions for several more years.
Even in those nine regions, the system struggled with financial problems and political opposition from regional authorities and law enforcement agencies. Several regional officials even protested: In December of 1998, the governor of the Ryazan oblast issued a statement addressed to the chairman of the Russian Supreme Court arguing that jury trials should be discontinued in his region. His reasoning? “Jury trials have not met expectations, since they resulted in a large number of acquittals, thereby invoking a strong negative response from the population of the region.”3 The Altai regional administration expressed a similar position. Even some judges and lawyers directly involved in jury trials stated that the country wasn’t ready for a restoration of the jury system . But these protests were all in vain. By January 1, 2003, jury trials were introduced in all of Russia.
The application of trial by jury in Russia brought up a number of questions and problems. Prosecutors and their supporters in law enforcement agencies were very unhappy with the high number of not-guilty verdicts initially issued by jurors. Additionally, people who were summoned to serve often didn't show up, either because they couldn't skip work, thought jury duty was a waste of time, or because they didn’t feel safe, knowing that those few who decided to fulfill their civil duty often found themselves pressured and manipulated by the prosecution. These problems were noted – and are still brought up today – by many lawyers and jurors.4
Nonetheless, the reinstatement of jury trials in Russia was a source of inspiration for the artistic community, including celebrities like actor and filmmaker Nikita Mikhalkov. His movie “12” became a big hit in Russia, receiving numerous awards, including the 2007 Themis Award (in the category of Law and Art) – the highest award in the Russian legal community.
Watching Mikhalkov accept the prize, attendees (most of them lawyers) felt embarrassed and uncomfortable. Their confusion had nothing to do with the artistic merits of the film: if my colleagues and I were not lawyers, if we didn't live in Russia and had never heard anything about the Chechen war, we would have absolutely loved this movie. Our problem was that the movie had nothing to do with the reality of Russian jury trials. In other words, the movie – undoubtedly an important artistic achievement –,did not offer a true representation of Russian law. The twelve men on the big screen, gathered in a school gymnasium in order to decide a verdict, could just as well have been carefree soccer teammates or members of a symphonic orchestra.
Leonid Nikitinsky’s 2008 novel "The Mystery of the Jurors' Room” paints a more realistic picture of the Russian jury. Without comparing the artistic merit of these two projects, one created by a film director and the other by a journalist, both famous in their own right, if we were to evaluate which gave a more faithful description of today's reality, I would say the novel did a better job. It is based on a true story, giving a perfect description of Russian jury trials and the threats and problems that jurors often face.
In 2008, jury trials were dealt a sharp blow with the adoption of a law that eliminated such crimes as terrorism, extremism, high treason and espionage from their already limited jurisdiction. This resulted in a public outcry, which climaxed on December 15, 2008 with the publication of an open letter to President Dmitry Medvedev in the newspaper Novaya Gazeta. The letter, signed by members of the Jurors Association, well-known actors, human rights activists, prominent lawyers and economists, argued, that "the authors of this Law together with members of the State Duma completely ignore the political and social aspects of jury trials. Russians who serve as jurors develop a more advanced legal consciousness, a civic awareness, and a different attitude toward the judiciary and the state in general. In order to protect an independent judiciary in Russia and deal with police abuses of power, it would be better to expand the jurisdiction of jury trials and the role of civil society in the administration of justice. Knowing the inner workings of the investigatory agencies and the courts, we are confident that trying cases of terrorism, mass rioting, espionage and other felonies without jurors will not make the prevention of such crimes more efficient. On the contrary, the result will be a mockery of crime prevention in which dozens of innocent people will be sent to prison.”
Despite protests from the Russian Public Chamber and human rights organizations, stating that the law was unconstitutional, would result in a further limitation of human rights, and must be declared void, the law was promptly adopted by the State Duma and the Federation Council and signed into law by the President. It is clear that the purpose of this law was to keep jurors out of criminal cases with a high risk of arbitrariness and for the state to be able to freely condemn the accused. Information collected by human rights activists proves that in today’s Russia, criminal charges in a number of terrorism cases are being falsified during the investigation. When falsification becomes obvious, jurors usually find the accused not guilty. In this way, jury trials motivate investigatory agencies to look for real terrorists instead of torturing innocent people to get them to admit that they've been involved in terrorism. When jurors are not involved in such cases, the option of an "unpredictable outcome” can be successfully avoided.
This situation caused sharp protest among lawyers and journalists, who then offered a number of solutions:
• Introduce a set of measures (including tax breaks), encouraging employers to allow their employees to serve as jurors while (if possible) keeping their salaries and benefits;
• Potential jurors should be selected on a random basis and in the presence of trial participants. This practice, which previously existed in Tsarist Russia, would help eliminate cases with an unjust and predetermined selection of jurors;
• When selecting jurors, both the prosecution and the defense must have equal opportunity to ask questions of potential jurors in the form of a written questionnaire. The list of potential jurors given to both parties should contain all the necessary information about each person;
• After the verdict has been read, the prosecution cannot request a reversal of the sentence on the grounds that certain information was concealed in the course of jury selection, or on the grounds that the composition of the panel of jurors was inappropriate;
• Jurors should be granted immunity for at least one year after the end of the trial in question;
• Efficient ways of isolating jurors until the end of a trial and protecting them from external influence and bribe attempts should be developed and financed. The disclosure of information about jurors in the media and on the Internet should be prohibited;
• Overturning acquittals on the basis of the jury's verdict (unless made on the grounds of a "fundamental procedural flaw”) should be prohibited;
• Extend the jurisdiction of jury trials to cases tried in district courts, at least to the types of cases – murder, serious bodily harm, bribery, robbery – also seen by a jury in regional courts.
Leonid Nikitinsky, founder of the Jurors Association of the Russian Public Chamber, says that interviews conducted with 150 former jurors in 20 different Russian regions prove that those who had experienced jury duty abandoned their preconceptions about judges and the judiciary and developed an advanced level of legal consciousness and democratic civic awareness. This is how the rift between Russian civil society and the courts can be addressed.
Despite all these issues, and even despite their very limited jurisdiction, jury trials are still vitally important for Russia. As 19th century political thinker Alexis de Tocqueville put it: "To look at jury trials as at any other judicial body means to limit its importance considerably. Jury trials affect court proceedings greatly and they affect the destiny of society even more. Jury trials teach people to think like judges, and that is the best way to prepare people for freedom.”
1 Sud Prisyazhnykh: Pyat Let Raboty (Trial by Jury – Five Years of Experience) [Materials of the roundtable conference], Publication of the Center for the Support of Criminal Justice Reform, (September 17, 1999, Krasnodar, 1999), 54
2 Sarah J. Reynolds “Drawing Upon the Past: Jury Trials in Modern Russia”. In Reforming Justice in Russia, 1864-1996. Power, Culture and the Limits of Legal Order, ed. Peter H. Solomon, Jr., M.E.Sharp, (Armonk, New York, London, England, 1997), 387
3 “Finansovaya Petlya Dlya Suda Prisyazhnykh” (Financial Loop for Jury Trial). Rossiiskaya Yustitsiya No. 5, 1999, 5-7.
4 Л.М.Карнозова. Присяжные о суде присяжных. В кн. Суд присяжных в России: совершенствование процедур и расширение юрисдикции. Москва, 2010, с. 16.
