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.
Popular news
Interaction
Protecting the rights of service members: The UNBA and the Military Ombudsman have agreed on cooperation
Servicemembers, reservists, conscripts during training exercises, members of local community volunteer units, and other individuals covered by the Law «On the Military Ombudsman» should have better access to professional legal assistance.
Rule of Law Roadmap
Reform without data and advocacy: what the Ministry of Justice’s launch has revealed
The Ministry of Justice hosted the first meeting of the working group on bar reform. But instead of professional preparation of legislative changes, we saw exactly what Armada Network Director Dale Armstrong had spoken about the day before in Kyiv: not reform, but a struggle for control over the agenda through a narrow circle of “stakeholders” who create an echo chamber of influence for themselves.
Rule of Law Roadmap
Advocacy, European integration and the limits of intervention: an American report presented in Kyiv
Following its presentation in Brussels, the report «The Ukrainian advocacy in the context of the rule of law and European integration» made its way to Kyiv. It highlighted critical issues both in understanding the very nature of the self-governing profession and in the emergence of a «shadow market» surrounding the Ukrainian advocacy.
Discussion
ETAIDF and MMC: where the system fails
The new system for assessing a person’s daily functioning and the practice of undergoing medical-legal examinations have already raised numerous questions — ranging from unclear procedures to difficulties in appealing decisions. These issues were examined by advocates during the roundtable discussion «Problematic issues of the ETAIDF and MMC», organized by the UNBA Committee on the protection of the rights of persons with disabilities and the All-Ukrainian public organization «Human rights union of persons with disabilities».
Rule of Law Roadmap
Access to the advocate profession: a subgroup has identified the direction of change
On Monday, March 16, a meeting was held of the subgroup «Access to the profession and training of advocates. Organizational forms of legal practice» of the Working Group on the implementation of the Rule of Law Roadmap.
Rule of Law Roadmap
Organization of advocacy: subgroup agrees on approaches to regulatory reform
On March 13, a meeting was held of the «Organization of the advocacy and self-government» subgroup of the Working Group on the implementation of the Rule of Law Roadmap regarding bar reform. The event was conducted via videoconference.
Guarantees of the practice of law
Ukraine has signed the Convention for the Protection of the Profession of Lawyer
Today, on 9 March, Ukraine's Permanent Representative to the Council of Europe Mykola Tochytskyi signed the Council of Europe Convention for the Protection of the Profession of Lawyer. This makes our country the 28th to sign this important international treaty.
European integration
The subgroup on European integration held its inaugural meeting
On March 5, the Ukrainian National Bar Association hosted a meeting of the subgroup of the Working Group on the implementation of the Roadmap on the rule of law in terms of reforming the advocacy sector, entitled «European integration, international practice and digitalization».
Publications
Volodymyr Matsko Extradition during wartime: when the risks outweigh the request
Volodymyr Matsko Extradition as a systemic form of rights violations
Victoria Yakusha, Law and Business The anti-corruption vertical cannot «take care» of the Bar as an institution, - acting head of the HQDCB
Censor.net Protecting advocates – protecting justice: addressing concerns about the new law
Ihor Kolesnykov A BRIEF SUMMARY REGARDING THE APPLICATION OF THE ORDER ON EXTENDED CONFISCATION IN LATVIA REGARDING FINANCIAL ASSETS OF…
Valentyn Gvozdiy WORKING IN A WAR ZONE
Lydia Izovitova Formula of perfection
Sergiy Vylkov Our judicial system is so built that courts do not trust advocates