PARTICULARITIES OF CRIMINAL PROCEEDINGS
WITH JURY IN PRE-REVOLUTIONARY
AND CONTEMPORARY
RUSSIA
Academy of the General Prosecutor's Office
St. Petersburg Law Institute
CONTENTS:
1. Jurisdiction of jury trials. – 2. Requirements
for Jury Candidates. – 3. Compilation of lists of candidates in jurors. –
4. Formation of a jury. – 5. Features of the
judicial investigation and debate of the parties when considering a criminal
case with participation of jurors. – 6. The wording of
the questionnaire and valedictory of the presiding judge to the jury.
Both in theory and in practice, a number of urgent
questions arise about improvement of the efficiency of criminal proceedings
with participation of jurors, the reasons for the annulment of court sentences
based on their verdicts. The most common reasons include significant violations
of the criminal procedural law committed at the stage of
preliminary investigation[1],
verdict of the unlawful composition of the jury[2], violations of the criminal procedural law committed
during consideration of the criminal case by the court[3], lack of evidentiary support of alleged crime and
others. In this regard, it is relevant to compare the stages and features of
criminal proceedings with participation of jurors under pre-revolutionary and
current legislation.
1. – Jurisdiction of jury trials
In the Russian Empire, jury trial was introduced by
the Charter of the Criminal Procedure of 1864, as well as by the Institution of
Judicial Establishments of 1864 [4], and lasted until 1917, when this type of legal
proceedings was abolished by the Decree of All-Russian Central Executive
Committee of the RSFSR "On Court" of 24 November 1917.
The jurisdiction of jury trial was determined by the
Article 201 of the Criminal and Correctional Penalties Code of 1845 (as amended
in 1866) and included cases of crimes or misconduct, for which the law imposed
penalties, combined with the deprivation or restriction of the rights of the
state. The Criminal and Correctional Penal Code of 1845 (as amended in 1866),
under the restriction of the rights of the state meant loss of the nobility,
deprivation of titles, ranks, and insignia; prohibition of being in the state
and civil service for nobles; deprivation of rank for clergy; prohibition to
participate in elections and to be elected "in honorary or combined with
the authorities positions" for merchants and
honorary citizens (Articles 22, 23, 43). In fact, they included moderate and
serious crimes. According to the calculations of the pre-revolutionary
researcher of jury A.M. Bobrishchev-Pushkin, about
410 articles of the Criminal and Correctional Penalties Code were judged by
jury, which amounted to about one fifth (or 20%) of all punitive
articles of Russian law[5].
During the crisis of jury in 1877 – 1889 a
number of crimes were sequentially removed from the jurisdiction of jury: cases
on crimes of the office, against the management order, abuse of public and
private bank officials, double-marriage, murder and attempted murder, violence
against officials in the exercise of their official duties, cases on the manufacture and storage of explosives[6].
A jury has ceased to consider criminal cases of
misconduct due to the incompetence of jury in a number in special issues
related to the performance of a particular official activity and the
possibility of exerting influence on them, as well as in passport cases due to
the disproportionate punishment of the damage caused,
absence of victim[7].
Citizens of Russia received the constitutional right
to a jury trial on November 1, 1991 - from the moment of amending part 1 of
article 166 of the Constitution of the RSFSR (1978). However, bringing the
criminal procedure legislation in accordance with the basic law of the country
lasted almost two years. Only on July 16, 1993, the Law of the Russian
Federation No. 5451-1 "On Amending and Adding to the Law of the
RSFSR" On Judicial System of the RSFSR", the Code of Criminal
Procedure of the RSFSR, the Criminal Code of the RSFSR and the Code of the
RSFSR on Administrative Offenses" was adopted, which provided for jury
trial. A special XX section was introduced in the Code of Criminal Procedure of
the RSFSR, which provided for consideration of cases by jury trial. By
Resolution of the Supreme Council of the Russian Federation on July 16, 1993
No. 5451 / 1-1 "On the Procedure for Enforcing the mentioned above
Act" in five regions of Russia (in the Stavropolsky
Region, Ivanovskaya Region, Moscow, Ryazanskaya and Saratovskaya
Regions), jury trials were envisaged from November 1, 1993 [8]. Gradually, this type of legal proceedings was practiced
in other regions of Russia.
Based on the analysis of the reasons for acquittals
decided on the basis of jury verdicts conducted on the basis of a summary of
judicial practice, a measure was passed to reduce the number of crimes
attributed to the jurisdiction of jury. Criminal cases concerning the most
dangerous crimes were seized from the jurisdiction of a jury - terrorist act
(Article 205 of the Criminal Code of the Russian Federation), taking of
hostages (parts 2 - 4 of Article 206 of the Criminal Code of the Russian
Federation), organization of an illegal armed group or participation in it
(part 1 of article 208 of the Criminal Code of the Russian Federation), riot
(part 1 of article 212 of the Criminal Code of the Russian Federation), treason
(article 275 of the Criminal Code of the Russian Federation), espionage
(article 276 of the Criminal Code of the Russian Federation), forcible seizure
of power or forcible retention of power (Article 278 of the Criminal Code of
the Russian Federation), armed rebellion (Article 279 of the Criminal Code of
the Russian Federation) and sabotage (Article 281 of the Criminal Code of the Russian Federation)[9]. Later was expanded the jurisdiction of criminal
cases to be considered with participation of jurors, with introduction of this
form of proceedings in the district and equivalent courts[10].
On June 1, 2018, the Russian Federation introduced a list
of crimes considered by jury, on the level of a district court, including
murders, qualified murders (parts 1 and 2 of article 105 of the Criminal Code
of the Russian Federation), sale of narcotic drugs and psychotropic substances
with aggravating circumstances (part 2 of article 228.1 of the Criminal Code of
the Russian Federation), causing grievous bodily harm, resulting in the death
of the victim by negligence (part 4 of article 111 of the Criminal Code of the
Russian Federation) and other offenses[11]. Until that time, only criminal cases of grave and
especially grave crimes were examined by jury on the level of the Court of a
constituent entity of the Russian Federation in the first
instance[12].
The legislator has repeatedly changed the jurisdiction
of cases examined by jury, which was caused by the presence of violations
during their consideration and a certain political and socio-economic
situation. In the 90-s of the XX-th century, this type
of legal proceedings was introduced gradually on the territory of Russia, as
the judicial system of the regions was ready. In general, the jurisdiction of
cases judged by jury trials in pre-revolutionary Russia was similar to criminal
proceedings pended today.
2. – Requirements for Jury
Candidates
First of all, it is necessary to analyze requirements
for jury candidates, established restrictions, procedure for preparing lists of
jurors, and then procedure for the formation of a jury, and some stages of a
criminal trial by jury.
Article 81, sub. 5 of the article 84, articles 87, 88
of the Institutions of judicial establishments provided for a number of
qualifications in relation to candidates for jurors: citizenship of the Russian
Empire, age (25 - 70 years), sexual (men), sedentary life (residence in the
county at least two years), property (income of a certain size or the presence
of real estate of a certain type, area and cost), literacy. Moreover, initially
it was enough that at least one jury of twelve members of the collegium
possessed elementary writing and reading skills. Soon, this requirement was
introduced for all candidates.
The legislator provided for a number of restrictions
on jury candidates. According to sub. 1 - 6 of the article 82 of the
Institutions of judicial establishment they could not be persons who were under
investigation or trial, convicted; persons who have shown themselves negatively
in terms of compliance with labor discipline; also unable to properly dispose
of property and live within their means; having specific physical disabilities
and mental disorders. The Russian pre-revolutionary legislation did not provide
for the institutions of extinguished or withdrawn criminal record. Persons
sentenced to imprisonment or more severe sentences could not become jurors.
In contradistinction from the current legislation, the
article 99 of the Institutions of judicial establishments regulated the need to
take into account the moral qualities of candidates for jurors during formation
of the lists. The requirements of a respectable lifestyle in terms of the
absence of vices for which a person could be expelled from the clerical
department, the environment of societies and assemblies, according to the
sentences of those classes to which they belong, and also the impeccable
conduct of labor activity were fixed in subsection 2 of article 82 of the
Institution of judicial establishments.
Current criminal procedure legislation does not
indicate a violation of labor discipline, in particular, dismissal of an
employee on the initiative of an employer, or failure to fulfill obligations of
a civil law nature as an obstacle to a jury. Of course, depending on the nature
of the criminal case under consideration, in some cases it is undesirable to include
such a candidate in the jury, and the presence of such a circumstance should be
clarified by the parties when deciding whether to declare challenges at the
stage of formation of the jury.
Insolvent persons (incapable of living within their
means and properly managing property) could not become members of a jury. As in
current law, the Institution of judicial establishments prohibited the
performance of a jury by clergymen, military personnel, and persons holding
certain government posts, including law enforcement officials, teachers, and
servants. According to O.N. Tisen, "contrary to
property and official qualifications, peasants predominated in the jury, and
small officials and petty bourgeoisie prevailed in
cities"[13].
Researchers of the pre-revolutionary criminal process
in Russia noted the problem of the representativeness of the estates in the
jury, which in practice was not provided. “The representatives of the local
element and the merchant’s estate were practically absent from the lists. And
the officials included in these lists, after being included in the regular
lists, appeared at the beginning of the court hearings armed with evidence from
the authorities about fictitious business trips or sudden special orders. Those
non-employees who were included in the lists often found themselves generously
supplied with evidence of an illness that did not prevent them, however,
sitting out evenings and nights at cards in provincial and district clubs and
sitting in chairs not in the courts, but in theaters”[14]. Other candidates in jurors submitted certificates of
illness. Unwillingness to perform the proposed functions was caused by
non-payment of participation in the administration of justice as a jury.
Subsequently, in 1887, people who fell into extreme
poverty were eliminated from the jury (article 82 of the Institution of
judicial establishments), since it was virtually impossible for peasants in the
absence of income and savings to live even in a small county town. In a number
of provinces of the Russian Empire, local authorities began to give small
allowances to peasants-jurors for the duration of their stay in the city. In
1972, such expenditure of budget funds was prohibited. Only forty years later
after the creation of the jury in Russia, the relevant law was passed on the
remuneration of underserved jurors[15]. The article 388 of the Charter of Criminal Procedure
provided for valid reasons for the failure to appear at the call of the court
for all participants of the criminal process, and additional for the jury
(article 650 of the Charter of Criminal Procedure). They included untimely
receipt of a judicial notice - later than a week before the date of the court
session.
According to V.G. Rumyantseva
and L.Yu. Panfilenko,
“admitting a broad democratic element in the jury in general criminal cases,
the legislation made substantial exemptions in relation to state crimes.
Representatives from the estates, leaders of the nobility, the mayor, the
district foreman were invited to consider them in the
courtroom”[16].
Despite the fact that subsequent researchers, as well as
drafters of the Judicial Regulations, noted the influence of the jury's social
composition on the subjectivity of decisions on certain categories of cases,
such subjectivity was considered as a merit of the jury, indicating that,
unlike the crown court, the jury upon verdict could be guided by "the
closest known to them behavior and inclinations of the defendant, as well as
local morals, customs and orders of domestic life"[17].
V.A. Voronin noted the
tendency of the jury to subjective verdicts, when there was a real danger of
becoming a victim of a similar crime, as they belonged to the same social group
as the victim. Thus, the commonality of the social group of the victim and the
jury was a serious factor influencing the verdict[18], which should have been taken into account by the
parties during selection of panel members.
The current legislation in many respects establishes
similar requirements for jurors. According to the article 3 of the federal law
“On jurors of federal courts of general jurisdiction in the Russian Federation”
dated August 20, 2004 No. 113-FL, they include the citizenship of the Russian
Federation, practical acquaintance with a Russian language, age from 25 to 65
years, legal capacity, lack of physical and mental diseases that impede the
performance of a jury, lack of addiction (alcohol, drug).
Jurors cannot be clergy, some public servants,
including law enforcement officers, military personnel; the same persons who
terminated their work less than 5 years before the compilation of the jury
lists, suspects, accused persons, persons with an unexpunged
and outstanding conviction (article 7 of the federal law “On jurors of federal
courts of general jurisdiction in the Russian Federation” of 08.20.2004 No.
113-FL). Part 1 of the article 10 of the federal Law of 20.08.2004 No. 113-FZ
established a restriction on the performance of the function of a jury not more
than 1 time per year, as well as in the article 104 of the Institution of
judicial establishments of 1864.
Despite clearly defined by the legislator requirements
for jurors, it is a significant challenge to determine whether candidates meet
the criteria established by the legislator, and therefore sentences imposed on
the basis of the verdict of such a jury are canceled due to a violation of the
law on the requirements for jury members[19]. The Criminal Procedure Code of the Russian
Federation provides for the procedure for the formation of a jury board
(article 328 of the Code of Criminal Procedure of the Russian Federation),
during which the court and the parties find out restrictions and the obstacles
to the performance of the functions of the jury from the persons who were
called from the pre-compiled lists. Nevertheless, the legislator does not
provide methods for verifying the validity of the information provided by
candidates, despite the requirement that the answers of candidates to questions
posed to them would be truthful. If the public prosecutor collects the relevant
information using his official position and then submits it to the court in the
form of certificates (for example, prints from the IC of the Regional
Department of Internal affairs about the criminal record of the candidates and
(or) their relatives), the court has the right to issue a private ruling and
resolve the issue of removal from participation in a criminal case with the
replacement of the public prosecutor. Thus, this issue has not yet been
resolved, although in practice there are certain ways to “eliminate” an
objectionable candidate. Depending on the alleged crime and the defendant’s
characteristics, scientific and methodological literature provides
recommendations on the selection of jurors for state
prosecutors[20], and
lawyers representing the interests of the defendants[21]. Specialists, including psychologists, are often
involved in this procedure in order to select the optimal composition and
possibly predict the behavior of members of the jury in the future.
After analyzing the “image” of a jury candidate in
legislation, it can be concluded that the current criminal procedure
legislation of the Russian Federation establishes similar requirements
(previously - qualifications) and restrictions on jury candidates.
However, the differences are obvious, including
restrictions on gender, class of society, some professions and lifestyle
characteristics, due to the class nature of the society in the XIX-th century in the Russian Empire, the absence of a number
of legal institutions (for example, criminal records) and the influence on
legislation of the prevailing political and legal opinions (in particular,
about the goals and types of punishment)[22].
3. – Compilation of lists
of candidates in jurors
Further, it is advisable to compare the number of
candidates included in the lists and in jury according to the pre-revolutionary
and current legislation of Russia. The pre-revolutionary legislation of the
Russian Empire provided for the notification of 36 jurors (30 main ones — to be
present during the entire judicial session to form a collegium and 6 spare ones
— in case one of the main ones does not appear) (articles 550 - 553 of the
Charter of Criminal Procedure). The law of 12.06.1884 reduced the number of candidates to be called up to 24 [23]. Candidates to the list of jurors were selected by
lot by the presiding judge from lists drawn up by the interim commissions.
Temporary commissions consisted of persons appointed annually by county
authority assemblies for this purpose, and in capitals - by combined sessions
of general city councils and local district authority assemblies (article 89 of
the Institution of judicial establishments, article 45 of the Regulation of
local authority institutions). They gathered under the chairmanship of the
county leaders of the nobility and with participation of one of the magistrates
of the county town (article 97 of the Institution of judicial establishments).
In accordance with the articles 82 - 102 of the
Institution of judicial establishments, general, regular and reserve list of
jurors were drawn up. Annually by September 1, were updated general lists of
candidates from among the local residents of the province. In its turn, regular
lists included persons from the general list who were called during the year to
participate in court hearings: 1,200 residents of St. Petersburg and Moscow, in
counties with more than 100,000 inhabitants - four hundred people, less than
100,000 inhabitants - 200 people. The special list included only persons with a
place of residence in those cities where jury trials were held, in St. Petersburg
and Moscow - 200 people, in other cities - 60. A.F. Koni
pointed out the unacceptable negligence of members of the Temporary Commissions
to compile lists of jurors who did not examine potential jurors in accordance
with legislative restrictions, since the lists often included “... crazy,
deceased, blind and deaf people, who were tried, did not know the Russian
language, were over 70 years of age, etc.”[24].
In modern Russia, lists of jurors are compiled from
general lists of district residents maintained by the territorial
administrations of local governments, by a random access computer system. In
accordance with the articles 4, 5, 5.1 of the federal law “On jurors of federal
courts of general jurisdiction” of August 20, 2004 No. 113-FL, a general and
reserve lists of candidates for jurors are compiled. According to the part 4 of
the article 4 of the federal law “On jurors of federal courts of general
jurisdiction”, the number of citizens to be included in the general list of
candidates for jurors of a constituent entity of the Russian Federation from
each municipality should approximately correspond to the ratio of the number of
citizens permanently residing in the territory of the municipality and the
number of citizens permanently living in the territory of the region of the
Russian Federation. This rule is established to determine the number of jurors
in the reserve list. Clause 7 of the Decree of the Plenum of the Supreme Court
of the Russian Federation “On the application by courts of certain provisions
of the Federal Law “On jurors of federal courts of general jurisdiction in the
Russian Federation” dated February 13, 2018 No. 5 also regulates the rules for
compiling a reserve list of candidates for jurors. They are similar to those
specified in the article 101 of the Institutions of judicial establishments of
1864.
Similarly to the judicial practice of Russia in the 19th
century, the chairmen of the courts control the compilation of lists of jury
candidates, being in direct contact with the executive authorities. Not later
than three months before the expiration of the term of office of jurors,
previously included in the lists of jurors, the chairmen of the courts shall
submit to the supreme executive body of state power of the corresponding region
of the Russian Federation offers about the number of candidates for jurors
necessary for the work of the respective courts (part 1 of the article 5 of the
federal law dated 20.08.2004 No. 113-FL). The general and reserve lists of
candidates for jurors of municipalities, districts and constituent entity of
the Russian Federation shall be sent to the executive court of the municipal
entity or the highest executive body of state power of the constituent entity
of the Russian Federation no later than one month before the expiration of the
term of office of the previous jurors (part 1 of the article 8 of the Federal
Law of 20.08.2004 No. 113-FL).
In the event that jury candidates cannot perform these
functions due to restrictions established by law or who submit a written
application to remove them from lists are identified in court lists, the
chairmen of the courts shall submit a corresponding submission regarding
amendments to the lists to the body responsible for the formation of lists.
Whereas previously the main jury consisted of
unemployed and housewives with free time, in recent years it has been more
common for people with higher education to participate in juries in major
cities of Russia. Changes in the composition of the jury are related to
reimbursement by the jury of not only travel expenses, but also the payment of
material compensation for the time the jury performs the duties of
administering justice. According to the part 1 of the article 11 of the Federal
Law of 20.08.2004 No. 113-FL the court pays the jury at the expense of the
federal budget compensation in the amount of one second part of the official
salary of the judge of this court in proportion to the number of days the jury
participated in the administration of justice, but not less than the average
jury income place of his main job for such a period. However, researchers
continue to note the need for lawmakers to encourage citizen participation in
the administration of justice by exempting jurors from paying taxes for a specific period, etc.[25].
4. – Formation of a jury
In the second half of the XIX-th
century, the procedure for the formation of a jury was governed by the first
section of the second division of the sixth chapter of the Charter of Criminal
Procedure of 1864. The presiding judge after establishing the appearance of the
candidates for jury on the lists submitted, resolved the issue of imposing a
penalty on persons who did not appear without good reason, in presence of more
than 30 people from the main list transferred it to the public or private
prosecutor, as well as to the defendant. The valid reasons for the failure to
appear at the call of the court were indicated for all participants in the
criminal process in the article 388 of the Charter of criminal proceedings,
additional for the jury - in the article 650, including untimely receipt of a
subpoena - later than a week before the opening of the court session.
Considering the features of jury trials under the legislation
of pre-revolutionary Russia, including the procedure for the formation of a
jury, A.A. Ilyukhov points to a combination of the
distinctive features of the Anglo-Saxon and Continental legal systems. The
first one was characterized by an adversarial type of process and was
manifested in the Russian criminal process by the possibility of challenging
when forming a jury. The second one was distinguished by the features of the
Inquisition process and was manifested in the possibility of studying information
about the identity of the defendant, which undoubtedly had a significant impact on the jury's verdicts[26].
Unlimited number of admissible challenges of
candidates for jurors established upon adoption of the Charter of criminal
procedure often led to inability to form a college due to the mentioned above
reasons for the reluctance of candidates to perform these functions, and
sometimes to the formation of a biased collegium, as
mentioned A.F. Koni[27], in connection with which a further restriction was
introduced on the number of claimed unmotivated bends.
Both parties had a right to withdraw no more than 6
assessors each, so that out of a total of 30, at least 18 non-designated persons
remained. The presiding judge dropped the tickets with the name and surname of
the remaining 18 candidates into the box and took 14 tickets by lot,
proclaiming each name taken out, which was put on the list by the secretary.
The first 12 on the list were the presence of the jury, and the last two became
spare. The process of forming a jury was completed by swearing in each member
of the jury according to the ritual of his religion.
According to the parts 1 and 2 of the article 326 of
the Criminal Procedure Code of the Russian Federation after appointment of a
court session by order of the presiding judge, the clerk of the court session
or assistant judge makes a selection of candidates for jurors from the general
and reserve lists in court by random selection and checks for the circumstances
provided for by federal law. The initial lists of jury candidates consist of a
different number of citizens of the Russian Federation. They can include from
20 to 200 candidates, taking into account the size of the territory of the
subject of the Russian Federation and the number of
residents[28]. For
example, according to paragraph 2 of the Guidelines for the organization of
judicial proceedings in criminal cases considered by jury members approved by
the Presidium of the Yamal-Nenets autonomous region on 05.17.2017, an analysis
of the existing practice showed that less than 100 candidates are inappropriate
to invite. More than 20% of them will not be delivered letters of invitation, 15%
of them will not appear at the hearing, 15% of them cannot
be jurors[29].
According to the part 4 of the article 326 of the
Criminal Procedure Code of the Russian Federation, after selection of
candidates for jury trials for participation in the criminal case is completed,
a preliminary list of their names, first names, patronymics and home addresses
is drawn up, which is signed by the court clerk or assistant judge who composed
it. Lists of jurors who appeared at the trial, without indicating their home
address, are handed to the parties with a simultaneous clarification of the
right to declare an unlimited number of motivated challenges to candidates in
case the circumstances are identified that impede the performance of functions
by candidates (clause 10 of the article 328 of the Criminal Procedure Code of
the Russian Federation) and one unmotivated challenge for each of the parties
(parts 4, 5 of the article 327, paragraphs 12 – 16 of the article 328 of the
Criminal Procedure Code of the Russian Federation).
Currently, the jury of the district court includes 6
people, while at the level of the court of the constituent entity of the
Russian Federation the collegium consists of 8 people (paragraphs 2, 2.1, part
2 of the article 30 of the Criminal Procedure Code of the Russian Federation).
The procedure for the formation of a jury is regulated
by the 328 of the Criminal Procedure Code of the Russian Federation. After a
brief opening statement by the presiding judge, the jury candidate has a right
to recuse himself, which is discussed with the participation of both parties
and resolved by the presiding judge. Then a general jury survey is conducted,
after which the parties proceed to discuss each of the candidatures and declare
motivated challenges in writing. Experienced psychologists can be connected to
the jury selection to draw up a psychological portrait of each candidate and
predict the course of his behavior during the trial[30].
General requirements for posing questions to jury
candidates are given in the second abstract of the paragraph 13 of the
Resolution of the Plenum of the Supreme Court of the Russian Federation “On the
application by the courts of the norms of the Code of Criminal Procedure of the
Russian Federation governing jury trials” of 22.11.2005 No. 23. In scientific
and educational works are provided recommendations on the preparation of
questions for jury candidates[31]. However, there is always a risk of concealment of
information from the parties and the court that could affect the formation of
the board. So, V.M. Bykov and E.N. Mitrofanov rightly point out the common reasons for the
annulment of court sentences involving jurors: 1) violation of the order of
priority when compiling a list of jurors; 2) family relations
between members of the jury[32]; 3)
concealment of information about the convictions of their
relatives[33].
Despite the procedure established by the legislator for the formation of a
jury, during which the court and the parties find out from the jury candidates
that they have limitations and obstacles to the performance of this function,
there are no statutory methods to verify that the information they provide is
true. The collection by the public prosecutor of such information using his
official position, followed by submission to the court of information (for
example, prints from the IC of the Department of Internal Affairs about the
criminal record of the relatives of the candidates) may be the basis for the
court to issue a private ruling. Today, this problem remains open. Unmotivated
challenge of the jury is done by deleting the name of the candidate on the
list. The college includes the first eight (ten) people according to
preliminary lists of non-nominated candidates (six or ten core and two reserve
members). The parties have the right to make a statement on the bias of the
formed jury by virtue of the artcile328 of the Criminal Procedure Code of the
Russian Federation (for example, a jury of women or men alone is supposed to
consider a criminal case on rape, however, if the court rejects the petition to
dismiss the jury on this basis, the jury will have a negative feeling of distrust
of them from one party or another, what may be reflected in the final decision
when deciding the verdict. A.F. Koni noted that he
also did not use this right, trusting the composition of
the board[34].
Comparing the mentioned above norms of the Criminal
Procedure Code of the Russian Federation with the provisions of the Charter of
Criminal Procedure of 1864, the following differences in the procedure for the
formation of a jury can be identified:
(1) Only pre-revolutionary criminal procedures
provided for unmotivated challenge of candidates, which could lead to the
formation of an illegal composition of the college. Moreover, initially their
number was unlimited, which often confused the jury selection process due to the
shortage of candidates on lists.
(2) An insignificant number of candidates to be
summoned to court on lists led to the impossibility of forming a college and
the need for repeated repetition of the procedure or the formation of a biased
college, unlike modern practice;
(3) The presiding judge did not give a short
introductory speech, and therefore the jury candidates were not oriented
towards the purpose of their presence in court (nature of the case to be
considered, identification of awareness, duration of the case, etc.);
(4) The choice of the presence (panel) of the jury by
the presiding judge by lot from among the non-nominated candidates, in contrast
to the established rule of the article 328 of the Criminal Procedure Code of
the Russian Federation - the first ten (eight) candidates from among the
unlisted candidates;
(5) Various composition of the district court and the
court of a constituent entity of the Russian Federation with a jury (clauses 2,
2.1. part 2 of the article 30 of the Criminal Procedure Code of the Russian
Federation), while under pre-revolutionary legislation juries for various parts
of the judicial system were not provided;
(6) The number of members of a jury is 12 according to
pre-revolutionary legislation and 6 in the current criminal procedure for a
district court (8 for a court of a constituent entity of the Russian
Federation), although when a jury was introduced in 1993, a collegium with only
12 members was envisaged (part 22, article 328 of the Criminal Procedure Code
of the Russian Federation).
Common features of the jury selection process for
pre-revolutionary and modern Russia are: (1) the ability to declare the college
biased; (2) upon completion of the formation of the college, the oath of the
members of the college and the choice of foreman.
The need to verify compliance with the requirements
for jury candidates when compiling lists of candidates before they are brought
to the court, the lack of representation of the population on jury trials,
ensuring the appearance of candidates in court, checking the validity of
reasons for failure to appear, guaranteeing the safety and independence of
jurors, and other problems were touched upon in the
writings A.F. Koni[35], which were partially resolved in the legal practice
of pre-revolutionary Russia, and were also taken into account by the legislator
when introducing a jury in the Russian Federation in the 90-s of the XX
century.
5. – Features of the
judicial investigation and debate of the parties when considering a criminal
case with participation of jurors
In the Russian judicial practice of the second half of
the 19-th century after formation of the jury, adoption of the oath and
election of the foremen of the jury, the presiding judge had to explain to the
jury their rights and obligations (articles 671-677 of the Charter of Criminal
Procedure). Similarly, this procedure is provided for the current criminal
process and is regulated by the part 6 of the articles 332, 333 of Criminal
Procedure Code of the Russian Federation.
However, in practice, the presiding judge very often
drew attention only to the technical side of the jury's work, without properly
explaining to the latter what was the assessment of internal conviction, doubts
about guilt, consequences of the verdict; there was a lack of published samples
of the presiding address. Currently, there is a technical opportunity to find
recommendations and similar samples in the scientific and
methodological literature[36].
Significant impact on the work of participants in the
trial have working conditions and its organization. A.F. Koni
mentioned in his works “poor hygienic and expensive cooking conditions”, the
absence of a jury lounge. In order to avoid negative impact on the jury, the
legislator constantly changed the legal regulation on the possibility of the
jury leaving the courthouse for a night's rest, admitting it in cases where not
a criminal but a corrective punishment should be decided,
then excluding it altogether[37].
At present, jury trials in courtrooms are by no means
adequately equipped in all courts, not to mention the organizational work of a
jury, which could negatively affect the performance by jurors of their
functions, especially in light of the expansion of the jurisdiction of cases
dealt with by jury, and the introduction of this institution in the district
and equivalent courts of general jurisdiction from 06.01.2018.
The examination of criminal cases by jury took a long
time, during which defendant was detained. A.F. Koni
noted the “long-term preliminary detention of the accused,” and despite the
fact that “there is a man in the dock who is undoubtedly guilty in their eyes,
but it is also certain that he has already been punished, sometimes even more
than that which would have been appointed by the court by law. The whole
difference was that he was subjected to this punishment not by the court’s
verdict, but by the decision of the investigator...”[38]. This problem was resolved in current legislation by
offsetting the time spent in custody of the defendant, both at the pre-trial
stages of criminal proceedings and during the court proceedings at the time of
serving the sentence of imprisonment (part 3 of the article 72 of the Criminal
Code of the Russian Federation).
In addition, in view of the widespread practice of
recovering money from the Russian Federation as compensation for claims before
the European Court on Human Rights in connection with unreasonably prolonged
detention in cases of termination of a criminal case on exonerating grounds,
the lack of grounds for applying this preventive measure and inadequate
conditions of detention in places of pre-trial detention[39] and, in general, the length of legal proceedings in
certain criminal cases, the Criminal Procedure Code of the Russian Federation
included the principle of a reasonable period of criminal proceedings (article
6.1).
Violations committed during the trial by jury also
consisted in violating the limits of the judicial investigation caused by the
improper activity of the judicial investigator and the court chamber as an
indictment chamber, insufficient understanding of the corpus delicti and its necessary features, overloading the list of
witnesses, clarification during interrogation of procedural participants of
information not relevant to the case under consideration[40].
A.F. Koni gives a vivid
example of ethical violations during interrogation of witnesses in the case on
charges of Prasolov in the murder of his wife.
“Witnesses were asked questions that convicted themselves of reprehensible
behavior; one of them, for example, was asked what prevented him from engaging
in a relationship with the murdered woman — her own unwillingness or her
virtue; the speeches of the defense indicated that gentlemen such as one of the
witnesses did not fight a duel, and the famous artist-singer was called the "idol of brainless girls"[41].
A judicial investigation involving a jury, as well as
when considering a criminal case in the usual manner, begins with the opening remarks
of the public prosecutor and defense counsel (part 1 of the article 335 of the
of Criminal Procedure Code of the Russian Federation). Further, the parties
submit evidence in accordance with the approved procedure by the presiding
judge, including separate judicial actions (interrogation, examination of objects and documents, and others)[42].
The Code of Criminal Procedure of the Russian
Federation does not regulate the tactics of interrogation of witnesses and
other participants in criminal proceedings when considering a criminal case
with a jury, focusing on procedural issues of the possibility of announcing the
testimony of an unappeared witness and complying with
the necessary requirements (article 281 of the Criminal Procedure Code of the
Russian Federation, clause 4 of the resolution of the Plenum of the Supreme
Court of the Russian Federation “On the court verdict” of
29.11.2016 No. 55)[43], the
possibility of interrogation as witnesses the persons, who were not included in
the indictment (part 8 of the article 234 of the Criminal Procedure Code of the
Russian Federation), compliance with the composition of the subject during
interrogation of certain categories of persons, for example, minor victims or
witnesses (article 280 of the Criminal Procedure Code of the Russian
Federation).
It is necessary to remember about the established
restrictions in the conduct of trial with participation of jurors.
1. If during the trial arises the question of
inadmissibility of evidence, it is considered in the absence of jurors (part 6
of the article 335 of the Criminal Procedure Code of the Russian Federation).
2. At present, one of the distinguishing features of
jury trials is the ban on the investigation of data on the identity of the
defendant (part 8 of the article 335 of the Criminal Procedure Code of the
Russian Federation), since information about a criminal record, bringing a
person to administrative responsibility, alcohol or drugs abusement
can create a prejudice against him by jury.
3. In the course of a judicial investigation in the
presence of jurors, only those factual circumstances of the criminal case shall
be examined, the evidence of which shall be established by jurors in accordance
with their powers (part 7 of the article 335 of the Criminal Procedure Code of
the Russian Federation).
4. During the process of judicial investigation and
other stages of criminal proceedings, the parties should not use legal
terminology, including when setting out the charges and raising questions to
the participants in the process, in speeches in the debates of the parties,
etc.
If these violations are reflected in the protocol of
the court session, a reference to them in the appeal (presentation of the
prosecutor) may become one of the grounds for the cancellation of the sentence,
which was decided on the basis of a jury verdict.
In contemporary judicial practice, violations of the
criminal procedural law committed both during preliminary
investigation[44] and in
criminal proceedings with the jury, are one of the common reasons for the
annulment of court sentences based on jury verdicts[45]. Thus, while during a judicial investigation in a
criminal trial with jurors in pre-revolutionary Russia the violations mainly
amounted to the ineffective organization of the trial, its delay, now the
violations are more likely to violate the norms of criminal procedure law and
affect the creation of jury prejudices regarding one or another procedural
party.
When comparing the debates of the parties in the
criminal trial with the jury regulated by the Charter of the Criminal Procedure
of 1864 and the Code of Criminal Procedure of the Russian Federation, it should
be noted that both regulatory legal acts provided for a similar procedure for
the parties to speak. Moreover, in judicial practice of pre-revolutionary
Russia, the reason for the annulment of the sentence could be various
inappropriate statements, in particular, in the defender’s speech “when the
criminal perspective is perverted, thanks to which the accused and the bad act
committed by him almost completely disappear, and on the dock there are
distracted defendants who are not subject to the punishment of the law and are
usually called the “environment”, “order of things”, “temperament”, “passion”,
“interest”, and sometimes the victims themselves, who have forgotten the
proverb: “Do not put bad, do not lead the thief into sin". The
prosecutor’s speech pointed to unacceptable “indications by the jury of the
harm that could result from an acquittal; "deliberate one-sidedness in
covering the criminal side of the matter ..., stinging ridicule and
inappropriate irony at the adversary’s address and, finally, the interpretation
of the task of the jury, as well as the meaning and purpose of the law in a
sense contrary to the public order and intentions of the
legislator”[46].
In contemporary criminal trial involving jurors, the
parties, when preparing speeches, turn to the speeches of famous
pre-revolutionary lawyers, give proverbs and aphorisms, not only from literature, but also from films[47]. Thus, in one of the criminal cases examined by a
jury in the St. Petersburg City Court, characterizing the role of the defendant
as a mediator in assasiation, the state prosecutor
drew a successful parallel between defendant’s functions with caporegime and
other mediators with Don Corleone (the customer) and the murders (executors)
from the book of Mario Puzo, and even more famous
movie “The Godfather”. In another criminal case, characterizing the testimonies
of witnesses in a criminal case, previously convicted of complicity in the sale
of narcotic drugs on especially large scale as part of an organized criminal
group, the state prosecutor cited the famous proverb: “Swans are not found in
sewage.” However, it is worth to remember that one should not overload speech
with such distractions, and they should not be inappropriate. Statements in
criminal cases about the murder “How much cost the life of a person?!” are
inappropriate and simulated from either party of the process.
Modern researchers note the particular importance of
the content of the prosecutor’s speech and the way it is
delivered[48],
citing statistical evidence as a result of a survey of members of the jury that
30% of respondents formed the opinion that the defendant was guilty precisely
after speaking in the debate of the public prosecutor[49]. Likewise, considerable attention should be paid to
the preparation of the speech of the defendant.
6. – The wording of the
questionnaire and valedictory of the presiding judge to the jury
Since the introduction of the jury institute in
Russia, the structure of the questionnaire to the jury has undergone a number
of changes. So according to the Charter of the criminal proceedings of 1864
jury was proposed to answer the following questions: Has the crime been
committed? Is the defendant guilty? Did he act with prejudice? Articles 801 -
815 of the Charter regulated in detail the content and form of questions that
should be drawn up in commonly used terms, and not in the form of definitions
adopted by law. At the same time, the legislator emphasized the need for actual
investigation and resolution of the issue of criminal liability of the
defendant by establishing differences between the meaning of the words
“committed” and “guilty”.
A.F. Koni noted that the
indulgence “according to the circumstances of the case” was influenced by the
personality of the defendant, with his good and bad qualities, with his
calamities, moral suffering, and trials. But where the question of suffering
arises, there next to it is the question of atonement”[50]. Currently, the legislator has imposed a ban on
examining at the trial data on the identity of the perpetrator, which are not
relevant to the criminal case under consideration and can create prejudice
among jurors (part 8 of the article 335 of the Criminal Procedure Code of the
Russian Federation). Despite the restriction established by the legislator,
both the defense and the prosecution parties sometimes violate this rule in the
form of a reservation, “randomly” during interrogation of the defendant or in
the debate make the appropriate reference, for example, “Remembering your many
previous convictions...” Despite the brick-bat of the presiding judge and his
appeal to the jury with a request not to take this information into account,
especially when passing a verdict, a certain thesis in the mind from the heard
is postponed by the members of the board.
A.F. Koni recommended on
compiling the questionnaire and criticized the existing practice of using legal
terms in the questionnaire (“violence”, “secret kidnapping”, “insult”, etc.)
and, at the same time, not using common words that do not raise any doubts,
such as “mistake”, “embezzlement” (instead, the word “spending” was
recommended), “arson” (replaced by “fire damage”)[51]. The Cassation Senate gave clarifications regarding
the formulations in the questionnaire to the jury[52].
According to T.Yu. Markova,
“the questions were to establish the identity of the defendant and the specific
corpus delicti for which he was prosecuted. The
identity of the defendant should have been determined as in the court judgment,
i.e. indicating his title, first name, patronymic, last name or nickname and
date of birth. In those cases where the profession of the defendant was of
particular importance, the type of his occupation, craft, skill or handicraft
industry were also established. To determine the specific corpus delicti it was necessary to indicate: place and time of the
commission of criminal offense; the individual or legal entity against which
this act was directed, and the attitude of the defendant to it; the actual
corpus delicti of its legitimate characteristics
(this was the only guarantee for the defendant that he would be convicted of an
act prohibited by criminal law under penalty of punishment). At the same time,
those signs were indicated that distinguished the defendant's crime from
homogeneous criminal acts; and if the law did not contain an exact definition
of this crime, then its distinctive features should have been determined by
comparing it with other border structures”[53].
The formulation of issues to be resolved by jurors and
their content are regulated by the articles 338, 339 of the Criminal Procedure Code of the Russian Federation[54]. The difference between the content of the
questionnaire regulated by the Criminal Procedure Code of the Russian
Federation and that proposed by the Charter of the Criminal Procedure of 1864
consists in supplementing the question of whether it was proved that the act
was committed by defendant. At the same time, the question of guilt, divided
into two questions in the Charter of the Criminal Procedure regarding generally
guilty of committing an act and its form, in the Criminal Procedure Code of the
Russian Federation can be detailed by private questions about the circumstances
that affect the degree of guilt or change its character, entail the release of
the defendant from liability. In necessary cases, questions are also raised
separately about the degree of implementation of the criminal intent, the
reasons why the act was not brought to an end, degree and nature of the
complicity of each of the defendants in the commission of crime. Questions are
permissible to establish the guilt of the defendant in the commission of a less
serious crime, if this does not worsen the position of the defendant and his
right to defense is not violated (part 3 of the article 339 of the Criminal
Procedure Code of the Russian Federation).
At present, in spite of the 4 main questions indicated
by the legislator to be included in the questionnaire (parts 1, 4 of the
article 339 of the Criminal Procedure Code of the Russian Federation), in
practice the number of questions included in it can reach several hundred,
especially in multi-episode criminal cases involving several defendants.
Practicing lawyers are inclined to the need to simplify its content. There are errors
associated with the inclusion of conflicting questions in
the questionnaire[55]. In
accordance with the part 5 of the Article 339 of the Criminal Procedure Code of
the Russian Federation, questions cannot be raised separately or as part of
other issues that require jurors to have the legal qualification of the status
of a defendant (about his criminal record), as well as other issues that
require a proper legal assessment when a jury passes its verdict. Proceeding
from this, it is unacceptable to pose questions to be resolved by jurors using
such legal terms as murder, murder with special cruelty, murder from hooligan
or mercenary motives, murder in a state of sudden strong emotional disturbance,
murder when exceeding the limits of necessary defense,
rape, robbery, etc.[56]
When a party disputes the defense of certain
circumstances and there are doubts about unanimous verdict, the presiding judge
often makes the establishment of these disputed circumstances either a separate
question or a part of the question. For example, is it proved that Ivanov
seized ten thousand rubles from Petrova against her
will in order to enrich himself, as well as the Samsung Galaxy S7 mobile phone?
At the same time, the defence party disputes the
theft of the mobile phone from the victim, and the charge of robbery is not the
only one, since robbery itself is not included in the list of crimes considered
by the jury. Or the question of whether it is proved that the victim was
stabbed 12 times, including 2 in the neck.The
last two injuries were disputed by the defense party, since this part of the
body belongs to vital organs, which indicates the intent of the defendant, and
it was precisely these injuries that, according to the forensic medical
examination, citizen Ivanov died. In a number of cases, qualifying features of
corpus delicti are presented in separate questions,
for example, on the motive and purpose of depriving a person of life of a
defendant, especially if, according to the jury, they are not established. For
example, is it proved that Ivanov has killed Petrova?
And Is it proved that Ivanov killed Petrova because
of her political activity in the New Russia social movement in a service
conflict? Pre-revolutionary lawyers did not point out the problem of using
these formulations of questions by jury in their writings.
Replacing legal terms, especially with regard to the
form of guilt of a person or the description of certain crimes, is particularly
difficult. For example, one can describe the qualifying signs of a murder
committed in a generally dangerous way as follows: is it proved that Ivanov
fired several Kalashnikovs from a window of his apartment located on the second
floor of a house at a specific address at citizens passing by in the daytime
and realizing that it could to harm their life and health? Currently, such
recommendations are absent in the Code of Criminal Procedure of the Russian
Federation and are provided only by practitioners at meetings and in separate
methodological recommendations of limited access.
A.F. Koni paid close
attention to the content of the parting words of the chairman. According to his
opinion, it was unacceptable to improvise the chairperson or to think about the
upcoming parting words during the debate of the parties and not to respond to
violations of the parties during delivery of speeches; unnecessary repetitions
of the articles of law by the presiding judge and discussions on legal
categories, for example, “an uninvited, thoughtful explanation of the
difference between a statement about the forgery of an act and a dispute about
its invalidity, an explanation, listening to which one could honestly admit
that there is no difference between them or an authoritative explanation of the
difference between a seizure and a search, which boiled down to the fact that
when they search, it is a search, and when something is
found, it is a seizure”[57].
The presiding judge should clarify the corpus delicti, its essential features, provide evidence,
including the testimony of witnesses, but not evaluate the actions of the (non)
guilt of the defendant. A.F. Koni in his work cited
examples from judicial practice, when the presiding judge gave the jury wrong advice
"not to bother comparing the conflicting testimonies of the witness, but
to leave them without consideration at all." In another case, the
presiding judge assessed the evidence, insulting the participants in the
process, characterized the case to be resolved as a proverb: “Pike in the sea
so that carp wouldn’t doze,” and repeatedly called the
defendant a “pike”[58].
A.F. Koni referred to
practical cases of erroneous verdicts due to the jury's misconception about the
prospects of punishing the defendant, which is why he considered it necessary
to disclose the punishment to which the defendant could be subjected. This rule
was enshrined in pre-revolutionary criminal procedure legislation 15 years
after the introduction of a jury trial. Particular attention was recommended to
be given to evaluating the conclusions of the forensic psychiatric examination
and the testimonies of experts in this field. The identification of a number of
mental deviations of the defendant, including the state of neurasthenia,
psychopathy, atavism, heredity, autohypnosis, obsessions led to the expansion
of the concept of insanity and the narrowing of the concept of responsibility[59].
Currently, the chairperson does not pronounce a
parting word before the jury verdict (Article 340 of the Criminal Procedure
Code of the Russian Federation), expresses his attitude to the prosecution and
the evidence presented, fails to clarify the norms stipulated by law, including
not recalling the evidence investigated in full, and fails to clarify the
punishment provided for the alleged crime may be grounds to cancel the court
verdict.
Studies of pre-revolutionary legal
scholars[60] and the chronicle of jurisprudence with participation
of jurors had a significant impact on the resumption of legal proceedings with
jurors in post-Soviet Russia and formation of valuable recommendations for law
enforcement on the basis of positive and negative experience in this field. The
legislator took into account many errors of judicial practice of the 19th
century when introducing a jury in the 90-s of the XX-th
century in Russia. Requirements for candidates have partially changed due to
changes in the political and socio-economic structure of society, but many
restrictions remained the same. The stages of the criminal process and their
regulation are largely similar to the Charter of the Criminal Procedure of 1864
and the Criminal Procedure Code of the Russian Federation. The very fact that
in the present days state prosecutors and lawyers appeal to the speeches of
pre-revolutionary lawyers shows the existence of eternal values that are
relevant for contemporary society.
Per la
pubblicazione degli articoli della sezione “Contributi” si č applicato, in
maniera rigorosa, il procedimento di peer
review. Ogni articolo č stato valutato
positivamente da due referees, che hanno
operato con il sistema del double-blind.
[1] E.N. ALEKSEEVSKAYA, Fatal errors of a jury trial, in Eurasian Bar 5, 2016, 32-35. A.A. ILYUKHOV, The influence of investigative errors committed during criminal
proceedings with jurors on the occurrence of judicial errors, in Transactions of the Academy of Management of
the Ministry of Internal Affairs of Russia 3 (51), 2019, 39 - 47. V.V.
MIKHAILOV, Features of the preliminary investigation of
criminal cases, judged by court with the participation of jurors, in Criminalist 2 (23), 2018, 38 - 45.
[2] Review
of court decisions on criminal cases examined by jury, approved by the letter
of the Prosecutor General’s Office of the Russian Federation of 09.03.2004 No.
12/12-04. G.L. KULIKOVA, Participation of
the public prosecutor in the formation of the jury [Manual, Academy General
Prosecutors Office of the Russia Federation], Moscow 2010, 19 - 24, 43 - 54.
A.N. RAZINKINA, Features of the appeal against sentences handed down
by a jury, in Criminalist 2 (23),
2018, 106 - 116.
[3] V.V.
VEDISCHEV, Typical errors and
consequences of procedural irregularities in criminal proceedings heard by a
jury (Russian and Conventional practice), Moscow 2020, 352 ss.
[4] Russian legislation of the
X – XX-th centuries
[Volume. 8. Judicial reform], Moscow 1991, 120 - 251.
[5] A.M.
BOBRISHCHEV-PUSHKIN, Empirical laws of
the activity of the Russian jury, in Russian
Thought, 1896, 49 - 50. [Cit. by: N.A. RAZVEIKINA. On the issue of jurisdiction of jury in accordance with the Charter of
Criminal Procedure and the Code of Criminal Procedure of the Russian Federation,
in Actual problems of Russian law 6,
2014, 1222 - 1227].
[6] N.A.
RAZVEIKINA, On the issue of jurisdiction
of jury in accordance with the Charter of Criminal Procedure and the Code of
Criminal Procedure of the Russian Federation, cit., 1223.
[7] A.F.
KONI, Jurors [Collected Works in 8
volumes. Volume 1], Moscow 1966, 333, 377 - 380, 388 - 390.
[8] H.M.
SHAKHBANOVA, Historical aspects of the
development of jury trials in Russia, in History of State and Law 23, 2015, 46 - 49.
[9] On
Amending Certain Legislative Acts of the Russian Federation on Countering
Terrorism: Federal Law of 30.12.2008 No. 321-FL.
[10] On
introducing amendments to the Code of Criminal Procedure of the Russian Federation
in connection with the expansion of the use of the institution of jurors:
Federal Law of 23.06.2016 No. 190-FL (Section “b” part 1 of article 1).
[11] On
introducing amendments to the articles 30 and 31 of the Code of Criminal
Procedure of the Russian Federation and article 1 of the Federal Law “On
amendments to the Code of Criminal Procedure of the Russian Federation in
connection with the expansion of the use of the institution of jurors: Federal
Law on 29.12.2017 No. 467-FL.
[12] For
more details on the dynamics of changes in the jurisdiction of criminal cases
considered by a jury, see: A.V. GABOV, N.M. KHROMOVA, Jury trial in Russia: a new reform, in Judge 5, 2016, 4 - 11.
[13] O.N.
TISEN, Features of the formation of the
jury after the judicial reform of 1864, in Administrator of the court 3, 2009, 44.
[14] A.F.
KONI, Jurors, cit., 334.
[15] A.F.
KONI, Jurors, cit., 335-336.
[16] V.G.
RUMYANTSEVA, L.YU. PANFILENKO, The
experience of the establishment of the institution of jury trials in the
Russian Empire, in History of State
and Law 20, 2008, 20.
[17]
Judicial statutes of 20.11.1864, setting out the reasoning on which they are
based. [Part 2], Saint Petersburg 1867, 97.
[18] A.V.
VORONIN, The problems of forming a
verdict in a jury (historical aspect), in History of state and law 16, 2010, 23.
[19] G.L.
KULIKOVA, The participation of the public prosecutor in the formation of the
jury, cit., 19 - 24, 43 - 54.
[20] G.V.
KARPOVA, The participation of the public
prosecutor in the formation of the jury, in Criminalist 2 (23), 2018, 89 - 95. G.L. KULIKOVA, The participation of the public prosecutor
in the formation of the jury, cit., 56 ss.
[21] I.B.
MIRONOV, Jury trial. Strategy and tactics
of judicial wars [Series: Academy of Law], Moscow 2015, 672 ss. V.V.
MELNIK, The art of speech in the jury
[teaching and practical manual, V.V. MELNIK, I.L. TRUNOV, 2-nd ed., revised and additioned],
Moscow 2017, 662 ss.
[22] M.V.
GRAMMATCHIKOV, Criminal record:
historical, criminal law and penal aspects [Abstract of the dissertation
for the degree of PhD on specialty 12.00.08], Krasnoyarsk 2002, 6.
[23] Commentary on the Charter
of criminal proceedings in Russian legislation of the X - XX centuries, [Volume 8. Judicial reform],
Moscow 1991, 326.
[24] A.F.
KONI, Jurors, cit., 333.
[25] A.A.
DROZDOVA, Jury trial: history and
modernity, in Journal of Russian Law
11, 2014, 2478.
[26] A.A.
ILYUKHOV, Jury trial in Russia: the
history of its formation and development, in History of state and law 23, 2015, 36.
[27] A.F.
KONI, Jurors, cit., 362.
[28] G.L.
KULIKOVA, The participation of the public
prosecutor in the formation of the jury, cit., 6 ss.
[29] Urbs:
http://oblsud.ynao.sudrf.ru/modules.php?name=docum_sud&id=333.
[30] R.V.
BAGDASSAROV, A jury trial is a court of
conscience and common sense (comparative legal analysis), in International criminal law and international
justice 2, 2009, 9.
[31] T.A.
VLADYKINA, Problems of formation of a
jury, in Journal of Russian Law
5, 2014, 84 - 94. .L. KULIKOVA, The
participation of the public prosecutor in the formation of the jury, cit.,
14 - 33.
[32] For
example: Foreman and a member of jury were sisters and hid this fact during the
formation of the college. // Definition of the Judicial Collegium for Criminal
Cases of the Supreme Court of the Russian Federation of 30.11.2006 No.
20-O06-47SP, in Bulletin of the Supreme
Court of the Russian Federation 2007. No. 10.
[33] For
example, the Judicial Collegium for Criminal Cases of the Supreme Court has
grown. The Federation canceled the acquittal of the Yaroslavl Regional Court,
motivating its decision as follows: when the jury was formed, the state
prosecutor asked the jury candidates whether there were any persons or their
close relatives who were ever prosecuted. The jury candidate K. hid from the
court the fact that his son had been prosecuted several times. Concealment of
this information deprived the parties of the right to challenge this person and
could influence on taking the decision on the case. // V.M. BYKOV, E.N.
MITROFANOVA, Reasons for the jury to
issue unfounded acquittals, in Russian
justice 2, 2010, 49.
[34] A.F.
KONI, Jurors, cit., 362.
[35] A.F.
KONI, Jurors, cit., 331 - 391.
[36] V.M.
LEBEDEV and others, Scientific and
practical commentary on the Code of Criminal Procedure of the Russian
Federation [under the general edit. V.M. LEBEDEV, V.P. BOZHIEV, 9-th ed.,
revised and added], Moscow 2014, 473 - 483. V.A. SUDARIKOV, The role of the presiding judge in the
administration of justice by a jury in the Russian criminal process
[Dissertation for the degree of PhD on specialty 12.00.09], Moscow 2004, 99 -
124.
[37] A.F.
KONI, Jurors, cit., 365 – 367.
[38] A.F.
KONI, Jurors, cit., 340.
[39] The
judgment of the European Court on human rights on Complaints No. 35919/05 and
No. 3346/06 “Birulev and Shishkin
v. Russia” dated 06.14.2016; A review of the jurisprudence of the Supreme Court
of the Russian Federation No. 4 (2017), approved by the Presidium of the
Supreme Court of the Russian Federation 11.15.2017; The judgment of the
European Court on Human Rights on complaint No. 63053/09 “Misyukevich
v. Russia” of 04.30.2015 // Review of the
judicial practice of the Supreme Court of the Russian Federation No. 1,
2016, approved by the Presidium of the Supreme Court of the Russian Federation
04.13.2016.
[40] A.F.
KONI, Jurors, cit., 344 – 350.
[41] A.F.
KONI, Jurors, cit., 349.
[42] V.S.
BURDANOVA, L.T. VOLNIANSKAYA, S.G. EVDOKIMOV and others, A guide for public prosecutor [Training manual, under the
editorship of O.N. Korshunova, 3-rd
ed., rev. and add., textbook], St. Petersburg 2015, 821. R.A. MUKHAMEDZHANOVA, Features of participation of the public
prosecutor in a judicial investigation in the presence of jurors, in Investigative practice 187, 2012, 78-93.
[43] For
more details see: E.V. BARKALOVA, The
influence of the judicial situation on the announcement of testimonies of
participants in criminal proceedings, in Criminalist 2 (21), 2017, 33 – 38 (http://procuror.spb.ru/izdanija/2019_02_01.pdf).
V.S. SHADRIN, The grounds and conditions
for the announcement in court of the testimony of the victim and the witness if
they do not appear at the hearing, in Criminalist
1 (22), 2018, 30 – 36 (http://www.procuror.spb.ru/k1207.html).
[44] On
some issues of the application by the courts of the Constitution of the Russian
Federation in the administration of justice: Resolution of the Plenum of the
Supreme Court of the Russian Federation of October 31, 1995 No. 8 (ind. 2 paragraph 16); On the practice of applying
legislation when considering criminal cases in a court of first instance
(general procedure for legal proceedings): Resolution of the Plenum of the
Supreme Court of the Russian Federation. Federation of December 19, 2017 No. 51
(paragraph 13).
[45] E.V.
BARKALOVA, Analysis and evaluation of the
protocols of individual investigative actions [Training manual], Saint
Petersburg 2019, 112 ss. (http://procuror.spb.ru/izdanija/2019_02_01.pdf).
V.M. BYKOV, E.N. MITROFANOVA, Reasons for
the jury to issue unfounded acquittals, in Russian justice 2, 2010, 48. N.F. VORONINA, The limits of judicial discretion when decreeing an acquittal by a jury,
in Criminal Procedure 8, 2005, 46.
V.V. KONIN, Jury trial: discussion
continues, in Russian judge 2,
2009, 44.
[46] A.F.
KONI, Jurors, cit., 350 – 351, 370 -
372.
[47] For
more details on the speech of the prosecutor see: G.D. BELOVA, Participation of the public prosecutor in
the debate of the parties [Lecture], Moscow 2010, 32 ss.
[48] R.V.
BAGDASSAROV, A jury trial is a court of
conscience and common sense (comparative legal analysis), cit., 20. V.V.
MELNIK, The art of speech in the jury,
cit., 82 - 142.
[49] V.M.
BYKOV, E.N. MITROFANOVA, Reasons for the
jury to issue unfounded acquittals, cit., 51.
[50] A.F.
KONI, Jurors, cit., 337, 345 - 348.
[51] A.F.
KONI, Jurors, cit., 360 – 361.
[52] Charter of criminal
proceedings with later legalization, legislative motives, clarifications of the
Governing Senate and circulars of the Minister of Justice / Ed. M.P. Shramchenko and V.P. Shirokova, St. Petersburg 1913, 730 - 731.
[53] T.YU.
MARKOVA, Posing questions by jury
according with the Charter of the criminal proceedings of 1864, in Actual problems of Russian law 4, 2014,
570 - 576.
[54] For
more details see: On the application by the courts of the norms of the Code of
Criminal Procedure of the Russian Federation governing jury trials: Resolution of
the Plenum of the Supreme Court of the Russian Federation of November 22, 2005,
No. 23 (paragraphs 26–32).
[55] In
particular, see: N.P. VEDISCHEV, The
content of the questions to the jury: analysis of judicial practice, in Criminal process 4, 2012, 62-67.
[56] On the
application by the courts of the norms of the Code of Criminal Procedure of the
Russian Federation governing jury trials: Resolution of the Plenum of the
Supreme Court of the Russian Federation of 22.11.2005 No. 23 (par. 29).
[57] A.F.
KONI, Jurors, cit., 355.
[58] A.F.
KONI, Jurors, cit., 359.
[59] A.F.
KONI, Jurors, cit., 382 – 386.
[60] A.F.
KONI, Moral principles in the criminal
process [Selected works, Comp. A.B. Ameline],
Moscow 1956, 19 - 48. A.F. KONI, Defendants
and Witnesses [Selected works, Comp. A.B. Ameline],
Moscow 1956, 116 - 162. A.F. KONI, Witnesses
at trial [Selected works, Comp. A.B. Ameline],
Moscow 1956, 153 - 160. I.YA. FOYNITSKY,
Course of criminal proceedings, 4-th ed., vol. 1, Saint Petersburg 1912.