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Ukrainian jury trials in criminal cases: reasons behind their inefficiency and suggestions for improvement

Thursday 28 October 2021

Kateryna Gupalo
Arzinger Law Firm, Kyiv
kateryna.gupalo@arzinger.ua

Mykola Nychyporuk
Arzinger Law Firm, Kyiv
​​​​​​​mykola.nychyporuk@arzinger.ua

The jury system is a common worldwide framework for court cases. In some countries, such as the United Kingdom and United States, trial by jury has been in place for hundreds of years, while many other jurisdictions have only begun involving jurors in justice proceedings relatively recently or are in the process of developing or implementing this institution.

Trial by jury in Ukraine was introduced as recently as 2012 with the adoption of the new Criminal Procedure Code of Ukraine (CPC) by Ukraine’s parliament. The Ukrainian jury is a mixed system where cases are heard by two professional judges and three jurors, and the decision is made by a majority of votes.

The list of cases that may be considered by jury is determined by Ukrainian criminal procedure legislation. In general, these are cases related to crimes punishable with life imprisonment. Such crimes include murder with qualifying circumstances, crimes against the territorial integrity of Ukraine, encroachment on the life of a statesman, and others. Nevertheless, as a general rule, trials involving these crimes are heard by one or three professional judges from the beginning of the session. Trial by a jury only occurs if the defendant, or one of the defendants (should there be several of them in the case), demands that the charges against them are heard by a jury.

According to statistics, in most criminal cases where a trial by jury could potentially be held, the trial was conducted by a panel of judges without jurors. Only one in seven defendants is tried by jury, indicating, among other things, that defendants rarely exercise their right to such a trial.

Before a jury can be admitted to the case, the presiding judge determines whether there are grounds provided by the CPC or the law to prevent the involvement of a citizen as a juror, or if there is a basis for dismissing individual jurors from their duties, or, similarly, for dismissing jurors at their verbal or written request. 

It should also be noted that participants in the process can play an active role in electing the jury. To clarify circumstances that might prevent a jury from participating in the trial, the prosecutor, the victim or the accused may ask the proposed jury pertinent questions. The parties also have the right to challenge the jury on general grounds.

The CPC stipulates that a jury’s decision-making procedure is a simple majority in a deliberation room. No member of the jury has the right to abstain from voting, except when the issue of punishment is being decided, and the judge or juror has voted to acquit the accused. In this case, the abstainer’s vote is added to the votes cast for the decision most favourable to the accused. Any disagreement as to which decision is more favourable for the accused is resolved by a vote.

Unlike many other jurisdictions, jurors in Ukraine have fairly wide powers to make decisions in a case, which are not limited to establishing the fact of a criminal act committed and deciding whether the person is guilty. The CPC stipulates that all issues related to the trial, except for the expediency of extending the measure of restraint in the form of detention, are decided jointly by judges and jurors.

At first glance, the legislative regulation of jurors’ participation in the consideration of criminal cases by the court is quite respectable, consistent, and promotes the participation of citizens in the administration of justice over offenders. However, in practice, this institution is not that effective.

Going back to the statistics, acquittals in cases that have been handed down by a jury aren't as common as defendants and their defence lawyers might expect. The percentage of acquittals with the participation of jurors is slightly lower than without their participation – five per cent versus 6.6 per cent. By contrast, the number of acquittals made by juries in countries with developed juries is significantly higher. What factors could be behind this situation?

In the authors', such a low percentage may demonstrate that the current model of jury participation in criminal proceedings in Ukraine is ineffective. To some extent, the current model of the Ukrainian jury echoes the Soviet system of lay courts (people’s juries), from which it was developed. In turn, the court of lay judges (people’s jurors) had a fairly inquisitorial bias. In fact, it did not provide for the real involvement of jurors in the decision-making process in the case, and the real adversarial nature of the process was not even discussed. People’s jurors were needed solely to create an artificial image of ‘direct democracy’ as well as to legitimise unpopular court decisions.

Similarly, juries in Ukraine do not tend to make the final decision in a criminal case on their own. Unfortunately, like lay judges, they do not fully exercise their rights or express their own views on the facts of the case, but unequivocally support the decisions made by professional judges.

Another factor that determines the current situation may be the unlimited possibility to challenging a jury’s verdict. In particular, a jury can only make a decision during the consideration of the case by a trial court judge. That decision can be subject to appellate review without any procedural obstacles. The problem is that the idea of handing over part of the judiciary to citizens was based on the aspiration that fateful court decisions be made not by professionally distorted representatives of the state (ie, professional judges) but by ordinary people applying justice and common sense. At the same time, excessive control on the part of higher courts undermines the significance of the jury’s decision, as the outcome will ultimately be decided by professional judges. Although it would be wrong to deprive parties of the right to review a jury’s decision, the grounds and limits of such a review should be reasonably limited. Otherwise, the very idea of the jury is demolished.

In addition, the lack of promotion of direct democracy as well as the lack of public experience in the administration of justice is another obstacle to the proper functioning of the jury system in Ukraine. This problem is largely exacerbated by the fact that a jury may only hear a specifically determined list of cases. As this list is somewhat narrow, and the number of cases initiated on such crimes rather small, society is therefore virtually deprived of the opportunity to see how the jury system works and what tasks are set before it.

It's also worth pointing out the limitation on the number of jurors involved in Ukrainian courts in criminal proceedings to three individuals. In the authors' opinion, the diversity of ordinary people’s views on the facts of a case and the different criteria for assessing the defendant’s actions would contribute to a healthy and sufficient jury discussion in the deliberation room. As a result, the most reasonable and just sentence would be passed. However, such a discussion is unlikely in the case of three jurors, who may feel more pressure to listen to a 'legally correct' view of the situation offered by the two professional judges.

The above problems create significant obstacles to the effective functioning of jury trials in Ukraine. However, such problems could be solved by reforming this institution and making both targeted and general amendments to Ukrainian criminal procedure legislation.

One of the key problems with Ukraine’s jury system which could be resolved is the limited range of cases that may be considered by such courts. It would be advisable to adopt the approach of the Western jury system, where cases with a significantly lower threshold of potential criminal sanction may be referred to a jury. Given the physical capabilities of the Ukrainian judicial system as well as the severity of the penalties provided by the Criminal Code, it would be best to establish the possibility of a jury trial in cases where the sanction of a criminal offence provides for possible imprisonment of more than five years. This is the most optimal limit, as with a lighter punishment, a person may still be sentenced to imprisonment but placed on probation rather than go to prison.

It would also be necessary to increase the number of jurors involved in a trial case. Firstly, it would allow the jury to make more balanced and substantiated decisions. Second, Ukraine is, unfortunately, a country with a fairly high level of corruption in society. Therefore, increasing the number of jurors would significantly reduce the chances of potential bribery. Notwithstanding, given that the institution of jurors is quite expensive in terms of supporting their activities, a diversified approach would be rational, when the number of jurors would increase in proportion to the severity of the criminal charges against the accused. For instance, it might be appropriate to increase the number of jurors to ten in cases of serious crimes, as well as of especially serious crimes, the sanction of which does not provide for life imprisonment. Cases involving the most serious crimes, where a person may face life imprisonment, should be heard by a jury of at least 20.

Equally important is the restructuring of the role of professional judges in cases heard by jury. The authors are convinced that adopting the experience of the UK and the US would be the most appropriate. In this regard, the role of a judge in a criminal case considered by a jury should be limited to resolving certain procedural issues, instructing jurors on the elements of the case, checking the admissibility of evidence before providing it to the jury, as well as determining the sentence for a guilty verdict. The decision on the merits of the case should be made exclusively by the jury in the deliberation room, without the participation of a professional judge. This, in our view, would eliminate a professional judge’s potential influence on the jury’s final decision.

Lastly, it is necessary to limit the possibility of further appeals against verdicts returned by a jury. Such a reform would result in the parties to the proceedings making every effort to prove their position to the jury, knowing that their decision will be final. The jurors would take their role in the process more seriously, knowing that it is up to them to make a fateful decision for the defendant in the case. Of course, it is necessary to allow for the possibility to appeal sentences passed with significant violations of procedural law as well as the sentence imposed. Nevertheless, the jury’s decision regarding the crime and the guilt of the accused must remain final.

In conclusion, it should be noted that although there is an institution of trial by jury in criminal cases in Ukraine, this method is not as effective as in developed countries and requires refinement. The main factors contributing to the ineffectiveness of the system are the narrow range of cases that may be referred to a jury, the limited number of jurors involved in a case, and the excessive role of professional judges, who in practice can both influence a jury’s decision-making process and overturn decisions in due course under review by higher courts.