Updating the jury trial model: pro or con?

The new model of jury trial, which was recently approved as a basis by the Verkhovna Rada of Ukraine, is causing a lot of controversy in the professional community. After all, there are reasonable doubts about its compliance with Ukrainian realities.

Draft Law No. 3843 of 14.07.2020 «On Trial by Jury» was the subject of discussion at a roundtable organized and held by the Ukrainian National Bar Association Committee on Information Policy and Media Relations.

The draft law defines the jurisdiction, composition of the jury, regulates the procedure for forming the jury and requirements for a juror, establishes his or her rights and obligations, the grounds and procedure for discharging a juror from his or her duties, the mechanism for removing a juror and replacing the dismissed juror with a substitute. It also outlines the main issues to be resolved by the jury, the procedure for deliberation and voting when reaching a verdict, defines the types of decisions of the presiding judge in the jury, the grounds for appealing the jury verdict, guarantees of rights and material and financial support, etc.

According to the chosen model, the jury will consist of one professional judge and a jury of eight people. The jurors will be selected by random automated selection from among the citizens of Ukraine who permanently reside in the respective judicial district and meet the established requirements.

The professional judge will act as a procedural presiding officer in the court session, but will not participate in the decision of the jury on the merits of the charges. A guilty verdict will be reached if at least seven out of eight jurors vote in favor of it. This verdict is final, and the judge has no right to change it. An acquittal may be appealed only if the jury selection procedure is violated.

Jury trials in Ukraine will be used in criminal proceedings for the most serious crimes punishable by life imprisonment.

The jury will have the right to decide solely on the guilt or innocence of the accused. A guilty verdict requires at least seven out of eight jurors to vote in favor. Acquittals may be appealed only if the jury selection procedure was violated.

Jurors will be provided with guarantees of immunity similar to those of judges for the duration of their duties in court, including protection from pressure or harassment. They will receive remuneration at the level of the salary of a local court judge, as well as reimbursement of travel, housing and per diem expenses.

Hryhoriy Mamka, Deputy Chairman of the Verkhovna Rada Committee on Law Enforcement, assured that parliamentarians are ready to finalize the draft and make amendments to it from lawyers. The MP also noted that this draft should be considered in conjunction with another draft No. 3845 of 14.07.2020 «On Amendments to Certain Legislative Acts of Ukraine in connection with the adoption of the Law of Ukraine «On Trial by Jury», and promised to support the bar so that its opinion could be heard by lawmakers.

Ilya Novikov, a lawyer at the International Criminal Court and an expert on the organization of jury trials, said that jury trials are his passion and he has over 20 years of experience working with them as a lawyer. But, in his opinion, the concept of the draft law is stillborn. The model of a full-fledged jury would be more effective, i.e. a panel of five citizens without professional ties to the judicial system, who consider a criminal case separately from judges and without their presence in the deliberation room. The expert warned that such a model would increase the number of acquittals and may cause public outrage, but it is the most objective and independent.

Attorney Oleksandr Tananakin partially supported his colleague's position. He believes that the current version of the draft law will not be adopted, as it contains many discrepancies between real life and the model described by parliamentarians. With such a jury trial, the case will be reduced solely to an assessment of the oratory of the parties and the fate of a person will be decided solely through the prism of the jury's subjective preference for speeches, as if in a theater.

Denys Ponomarenko, Chairman of the Committee on Criminal Law and Procedure of the Bar Council of Odesa Region, has proven to be a supporter of the classic jury trial. He does not support the current model of three people and two professional judges, which is provided for in the Criminal Procedure Code. The lawyer drew parallels through the historical aspect and analyzed the shortcomings of the past.

Oleksiy Shevchuk, Chairman of the UNBA Committee on Information Policy and Media Relations, emphasized that a temporary working group will be created on the basis of the UNBA to study the issue of jury trial in Ukraine. This is an important initiative. At the same time, draft law No. 3843 raises controversial issues, in particular, the election of jurors, their anti-corruption protection and their inseparability from the judicial process.