Trial by jury

Trial by jury (суд присяжних; sud prysiazhnykh). A court proceeding in which, besides a judge, a body of ordinary citizens known as the jury takes part. Trial by jury originated in England and spread from there to the United States of America. In the 19th century it became widely accepted in Europe. The jury does not play an active role in the trial; it follows the proceedings and, at the end, makes a judgment on the guilt or innocence of the defendant. Depending on the verdict, the judge or judges determine the punishment. Jurors do not serve continuously but only for limited terms.

Trial by jury was introduced in Russian-ruled Ukraine with the judicial reform of 1864. It was compulsory for serious criminal offenses punishable by over 10 years’ imprisonment or by death penalty, and for religious and political crimes. In the early 20th century, doubts about the institution’s usefulness arose, and the powers of the jury were gradually reduced. Efforts were made to exclude the jury from political trials. One of the strongest defenders of the institution in Ukraine was Oleksander Kistiakovsky.

In Austrian-ruled Ukraine, trial by jury was introduced in 1873 for political crimes, illegal publications, and other crimes punishable by over 10 years’ imprisonment or by death.

In Ukrainian territories within the interwar Poland, trial by jury was grounded in the Polish Constitution of 1921 and the Austrian criminal law that continued to be binding in Galicia. The Polish Criminal Code of 1928 also provided for jury trials, but they were abolished a few years later, and the new constitution did not mention them.

In Ukrainian territories ruled by Romania, trial by jury was practiced until 1936. In Czechoslovakia, juries were also abolished in the 1930s. The abolition of trial by jury reflected the theoretical argument that jurors who are unfamiliar with the law cannot render a fair verdict.

In the Union of Soviet Socialist Republics, trial by jury was considered to be ‘bourgeois.’ Citizen participation in the court system was limited to so-called people’s assessors, who sat with the professional judges on all courts of first instance. Although assessors had the same rights as judges, they were in practice dependent on them.

Andrii Bilynsky

[This part of the article originally appeared in the Encyclopedia of Ukraine, vol. 5 (1993).]

Trial by jury in independent Ukraine.

General provisions on the status of jury trial. The concept of trial by jury has been enshrined in the Constitution of Ukraine. According to Article 124 of the Constitution and Part 3 of Article 5 of the Law of Ukraine ‘On the Judiciary and the Status of Judges,’ people have the right to participate in the administration of justice through juries. However, in practice, the criminal and civil procedural codes had not for a long time regulated the participation of jurors in court proceedings. Particular details of the administration of justice by a jury were specified in the Criminal Procedure Code of Ukraine (2012), the Civil Procedure Code of Ukraine (2004), and the Law ‘On the Judiciary and the Status of Judges’ (2010). According to legal provisions, the status of a juror is the same as the status of a professional judge. In practice, it means that the vote of a juror is equal to the vote of a professional judge during the decision-making process. In spite of the legislators’ attempts to consolidate the provisions concerning the status of juries in the Criminal Procedure Code of 2012, trial by jury in Ukraine today has many features of the Soviet equivalent of jury trial, the system of people’s assessors. As a result of that, there are risks that the jury may lack independence and that professional judges may influence the jury during trial.

Chapter 3 of Section III of the Law of Ukraine ‘On the Judiciary and the Status of Judges’ defines the status of a jury. According to this Law, a juror is a person who, in cases specfied by procedural law and with his consent decides cases in court or is involved in administering justice. A person must meet the following requirements in order to be included in the judicial process in the role of a juror. He/she must: (1) be a citizen of Ukraine; (2) be a person who has reached the age of thirty and is a resident in the territory under the jurisdiction of the relevant court, unless otherwise stipulated by law; and (3) consent to be a juror.

The following categories of persons are not allowed to be jurors: (1) those recognized by the court to be partially legally capable or legally incapable; (2) those who have chronic mental or other diseases that prevent them from performing duties of a juror; (3) those who have an unexpunged or not annulled conviction; (4) people’s deputies of Ukraine, members of the Cabinet of Ministers of Ukraine, judges, public prosecutors, officers of internal affairs bodies and other law enforcement agencies, members of the armed forces, court staff, other public servants, local self-government officials, lawyers, notaries, members of the High Qualifications Commission of Judges of Ukraine and the High Council of Justice; (5) persons against whom administrative penalties for corruption offenses have been imposed during the past year; (6) citizens over sixty-five years of age; (7) people who do not speak the state language.

Those who wish to serve as jurors must be included in the list of jurors. Local councils of the territory over which the jurisdiction of the relevant district court extends compile and approve the lists of jurors for the period of 3 years.

Guarantees of the Rights of Jurors. Jurors are guaranteed the same independence and integrity of their status as those of professional judges during their involvement in the judicial process. Jurors are paid compensation for the performance of their duties in court, calculated on the basis of the salary rate of a professional judge for actual time worked. Jurors are reimbursed for travel and accommodation expenses. For the duration of time they perform their duties in court, jurors are guaranteed their employment and all work privileges stipulated by law. The time served as juror in court is added to the person’s record of employment. Dismissal of a juror from his/her job or transfer to another job without his/her consent during the time he/she performs his/her duties in court are not permitted.

Juries in criminal proceedings. Two professional judges and three jurors can hear criminal cases in a court of the first instance, which deal with prosecuting a person for crimes punishable by life imprisonment. This is possible only if there is a motion of the accused to hold a trial by jury. Professional judges and jurors decide all matters related to the trial jointly, except for the issue of continuing the detention of the accused. A professional judge presides over meetings of the jury. He/she raises issues, conducts open voting, and counts votes.

During criminal proceedings, jurors have the right to: participate in the examination of all evidence in court; take notes during court hearings; ask questions to the accused, victims, witnesses, experts, and other persons being interrogated, with the permission of the presiding judge; ask the presiding judge to clarify the legal norms to be applied in resolving issues; legal terms and concepts; the content of documents announced at the hearing; details of the crime etc.

Jurors’ are obliged to: consider and resolve court cases fairly, impartially, and within reasonable time frames; adhere to the rules of judicial ethics; show respect to the participants of the judicial process; disclose no information that is secret and protected by law, including the proceedings in the deliberation room and at closed court sessions; comply with the requirements of corruption prevention; truthfully answer questions asked by the presiding judge and other participants about their possible legal barriers to participation in the trial and their relations with people involved in the criminal proceeding; observe the order of court sessions and carry out the instructions of the presiding judge; not leave the courtroom during trial; not communicate with people who are not members of the court regarding the criminal proceedings without the permission of the presiding judge; not collect information related to criminal proceedings outside the court session, etc.

Juries in civil proceedings. According to the Code of Civil Procedure of Ukraine, a panel of one professional judge and two jurors may hear civil cases. This also applies to cases heard in the court of the first instance, on: (1) restricting person’s civil capacity, rendering person incapable, and restoring person’s civil capacity; (2) establishing the fact that person is missing or dead; (3) adoption; (4) admitting person to involuntary psychiatric treatment; (5) admitting person to involuntary hospitalization in a tuberculosis sanatorium.

Liability for obstructing the exercise of power by jurors. A person may be held administratively liable for obstructing, under any pretext, an official from appearing in court to perform his or her duties as a juror (Article 185-5 of the Code of Ukraine on Administrative Offenses). Criminal liability may be precipitated on a person for: (1) threatening a juror or his/her close relatives with murder, violence, or property destruction or damage, in relation to the juror’s activities (Article 377 of the Criminal Code of Ukraine); (2) intentional destruction or damage of property belonging to the juror or his/her close relatives, in relation to the juror’s activities associated with the administration of justice (Article 378 of the Criminal Code of Ukraine); (3) murder or attempted murder of a juror or his/her close relative(s), in relation to the juror’s activities associated with the administration of justice (Article 379 of the Criminal Code of Ukraine).

Kateryna Shunevych

[This part of the article was written in 2022.]

BIBLIOGRAPHY
Kodeks Ukraïny pro administratyvni pravoporushennia [7 December 1984]: https://zakon.rada.gov.ua/laws/show/80731-10#Text
Konstytutsiia Ukraïny [28 June 1996]: https://zakon.rada.gov.ua/laws/show/254к/96-вр#Text
Kryminal'nyi kodeks Ukraïny [5 April 2001]: https://zakon.rada.gov.ua/laws/show/2341-14#Text
Tsyvil'nyi protsesual'nyi kodeks Ukraïny [18 March 2004]: https://zakon.rada.gov.ua/laws/show/1618-15#Text
Kryminal'nyi protsesual'nyi kodeks Ukraïny [13 April 2012]: https://zakon.rada.gov.ua/laws/show/4651-17#Text
Pro sudoustrii i status suddiv [2 June 2016]: https://zakon.rada.gov.ua/laws/show/1402-19#Text
Nor, V.; Bobechko, N. et al. Kryminalnyi protses Ukraïny: Akademichnyi kurs, vol 1 (Lviv 2021)