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Vlsenko on Trial by Jury

February 1, 2013

Way back on 19th January 2012, I wrote:  “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.

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 what would 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.

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.”

All very clever of me, really quite obvious, and still to be resolved – but why am I bringing this matter up again?

Well because of this statement by Serhiy Vlasenko, the lawyer of Ms Tymoshenko, complaining that there is no jury system in Ukraine – a fact his defendant did absolutely nothing to change whilst she had the power to do so.

But what is bizarre seems this comment by Vlasenko,  “There is no trial jury in Ukraine. Under the new Criminal Procedure Code, a trial jury in Ukraine is the composition of the court, which includes two judges and three jurors as they [the authors of the Criminal Procedure Code] call them. But in reality there is no trial jury. These are what in Soviet times were called ‘people’s assessors.”

It seems bizarre as  any Ukrainian lawyer, particularly one supposedly charged with defending such a high-profile defendant, political ally and personal friend as he is, should know that the role of “people’s assessors” was removed in June 2011, and thus “people’s assessors” which he seems to have a distaste for, were not only a “Soviet” institution, but also very much alive and well through his defendants time as Prime Minister and his party’s time in power – when they could have changed things, but didn’t.

It follows then, he may very well have said “These are what in Tymoshenko times were called “people’s assessors” – One wonders who he is trying to fool with the inference to the perceptions of dark Soviet times and a suggestion of a long bygone system.

Certainly such comments cannot be aimed at a Ukrainian audience who were still subject to “peoples assessors” until 2011.  It is hardly going to wash with those within the Venice Commission or the Council of Europe that are well aware of when such roles and titles were officially and legally put to the sword in Ukraine as they had a hand in drafting the new Criminal Code.  Thus the diplomatic and a large part of the European political class will also see directly through such a statement.

A play for the sympathy of the western masses and less than diligent western media?

It is hardly surprising that there are recent statements on record from the Ukrainian prosecution stating they are happy with Mr Vlsenko’s defence of Ms Tymoshenko.  He seems to be very preoccupied with spinning media sound-bites and picking holes in the system that made him rich, famous and that he and his defendant did nothing to change – rather than doing much good at actually defending her.

That said, after 13 requests to Ms Tymoshenko to attend court, and 13 refusals to attend (with more to follow no doubt) due to ill health, he has no defending to do in any court so I suppose he may as well play games with a less than clued-up media and western audience.

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