Archive for January 18th, 2012


Are trials by jury coming to Ukraine? – New Criminal Procedure Code

January 18, 2012

The Constitution of Ukrainian provides a right to trial by jury.

So far nobody has had a trial by jury even when they have asked for one as stated in the constitution.  Ms Tymoshenko is probably the last well known case requesting a trial by jury as is her constitutional right, to have proceedings continue without a jury.

She is not the only person in Ukraine since independence and the creation of the constitution to ask for trial by jury however.  She was therefore denied her constitutional right no more than others before her.

Why? – Well because although the constitution provides a right to trial by jury, it does not define who, what, or how many make up a jury.  It allows that definition to be set by other subsequent legislation.  Fair enough, a constitution is not a document intended to go into legal technicalities but is a broad document covering Ukrainian life and a basic framework of unassailable rights.

However, since the writing of the constitution, no president, prime minister or government has made any attempt to provide the right to trial by jury as per the nation’s supreme law.  In effect all political leaderships and parliaments since independence  have duly denied any Ukrainian who has entered the legal system their constitutional right to trial by jury.

That duly means every Ukrainian president has failed to uphold their oath to protect the Constitution of Ukraine and the associated rights within.  Every single one of them.  Every single prime minister and government since independence has also failed to draft and pass the legislation necessary to bring into force to allow a president to uphold Ukrainian rights as specified in the constitution.

The entire political class, past and present, regardless of political party, is responsible for the fact that a constitutional right cannot be implemented.

It seems it is likely to change very soon.  Apparently the president has submitted a bill to parliament that provides for a new criminal procedures code and within it, this issue of trial by jury is addressed.

What remains to be seen is the definition of a juror.  Every nation has a different criteria for those who can be considered to act as a juror.  The composition of a jury is also going to be interesting.  Again, nations differ globally as to the number of jurors and the make-up of the jury.  As an example, France and Brazil function quite differently to the UK, which in turn functions differently from many other nations.

What cases can and will be heard by a jury?  Again there are global differences.  Some nations set a minimum jail tariff for a crime as a trigger for trial by jury, others have a list of crimes that define a trial by jury or not, some allow juries only for criminal proceedings, others for any proceeding, criminal or civil.  There are indeed variants of all the above and combinations of all the above.

Quite simply there is no global norm or closer to home, EU norm.

It will be interesting to see which national system Ukraine will mirror when the details of the bill become publicly available and whose definition of a juror and composition of jury will be employed.

It is a step in the right direction, however, even if or when this bill passes and is signed into law, one wonders how long it will take to become a reality.  Effective implementation of policy or law is not something that Ukraine excels in.  In fact effective implementation is one of Ukraine’s biggest structural weaknesses as I have written many times before.

Regardless, I now keenly await the details of the proposed Criminal Procedure Code, even if it proves not to be perfect, and hope to see trials by jury as constitutionally guaranteed in Ukraine in the foreseeable future.  Even if not perfect it will at least provide some form of transparency and legitimacy to any guilty verdict.

If there is anything to be learned throughout history, revolutions, riots and mass public action all have their roots in injustice and dignity.  To be classed as almost invisible or unworthy of time and effort with regards to the most basic of equality before the law and thus recognition by the State, leads inevitably in one direction regardless of how long it takes to get there.

There is really no difference between the root causes of the French Revolution, Suffragettes, recent Arab uprisings or occurrences in Russia.  Injustice and personal dignity are at the root of each and every example.  Of course it should also be noted that when injustice and dignity removes itself from an individual and transposes to a group of individuals then injustice can very well continue when they become those in power.  Invariably it takes time for the balance to set itself in equilibrium.

Given the recent events relating to Ms Tymoshenko and others, as well as recent and on-going events in Russia,  the current Ukrainian authorities are probably very aware that something must be overtly done in the public sphere of justice and equality to keep the faith of the voting majority.  Transparent trials by jury and the eventual procedural implementation of a long held but previously impossible to deliver constitutional right seems like an obvious answer.

Nevertheless it would be quite ironic that a president and government perceived as authoritarian and persecutory implement trial by jury, where others who claim to be the “democratic forces” failed to even try.

Personally, I don’t care who implements trial by jury as the policy is far more important than the politicians.

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