Jury trial is an important tool of the democratization of criminal procedure, and signals a turn from the inquisitorial type of procedure in the Russian courts. The attitude towards trial by jury in pre-revolutionary Russia was not homogeneous. There were supporters of the institution who considered that it was a trial of “public consciousness,” “common sense,” “truth proved by life.” There were also the opponents who called it “mob punishment,” “trial without any sense of purpose,” “a toy in the hands of the prosecution and especially of the defense.”

The basis for the criticism of trial by jury were the verdicts of “not guilty” returned by jurors even in cases when the facts of the crime were proved and the defendant was guilty without doubt. This is, probably, a characteristic feature of jury trials in other legal systems as well. In pre-revolutionary Russia the jurors returned verdicts of “not guilty” in 40% of cases on the average. In cases of political crimes (crimes against the existing order of government, violent acts against its officials) the percentage of such verdicts was even higher. This made representatives of state institutions hostile to the institution because of the political situation in Russia and the rise of the revolutionary movement.

Jury trial was institutionalized with difficulty under those conditions. After the Court Charter was passed, a series of legislative acts followed. They were aimed at securing the jury composition from among the representatives of the social strata that were the bulwark of autocracy. The aims of these laws were also to limit the jurisdiction of trial by jury and the perfection of the jury trial procedure. Nonetheless, the main aspects that constituted the essence of the institution were : the possibility for the jurors to decide the destiny of the defendant on the principle of justice, life experience, but not necessarily in accordance with formal legal rules. The jurors could find the defendant “not guilty,” even if the fact of the crime and the involvement of the defendant was proved, if for instance, the crime was committed due to unbearable life conditions. All these factors coincided with popular legal consciousness and dreams about the trial that was “prompt and humane.”

The first trials by jury were heralded as the reestablishment of the institution in Russia. Trial by jury was represented as not something borrowed from the West in the course of the democratic changes, but as a native legal tradition that was being revived. That is why I want to dwell on the problem of whether this ideology coincides with the reality of the institution.

Analysis of the legal provisions relating to trial by jury and judicial practice allow us to view the Russian jury as a synthetic model, combining the features of modern, pre-revolutionary Russian and Soviet criminal procedure. First, the approach to jury trial including the defendant’s right to be judged by his peers is modern as is the fact that evidence that was obtained in violation of the law is considered inadmissible. Second, the law includes national pre-revolutionary procedure (for example, the procedure for questioning the jurors). Third, the institute combines some features of the criminal procedure of Soviet times with is inquisitorial approach (for example, the usage in trial by jury of the institution of returning a case for re-investigation and the broad rights of the cassational instance concerning the revision of sentences in jury trials.

Jurisdiction of jury trial coincides with that of the regional or territorial courts dealing with criminal cases. [4] There are more than twenty-seven categories of such crimes. [5]

In pre-revolutionary Russia the choice of trial by jury was not considered the right of the defendant. According to the Court Charter of 1864 all cases that presupposed punishment of deprivation or limitation of civil rights were to be tried by jury. Deprivation or limitation of civil rights presupposed, alongside with imprisonment or hard labor, deprivation or restriction of class privileges, civil, property and family rights.

However, in contrast to the English and American systems that exclude consideration of a case by a jury when the defendant pleads guilty this possibility is excluded in revolutionary and modern Russian jury trial procedures. This can be explained by the fact that in Russia both then and now, jury trial was and is viewed as a means, capable of destroying the inquisitorial approach to the system of criminal procedure. An investigator often sees his main task in making the accused plead guilty, considering such a plea “the queen of evidence,” or “the best evidence in the world.” But the fact that the accused pleads guilty does not mean that he/she is guilty.

This institution adopted from foreign practice, is more broadly interpreted in our country as in other countries. For example, exclusion of evidence is more restricted in the judicial system of the USA, where only evidence obtained in violation of constitutional rights is excluded. In Russia evidence is excluded in cases of violation of any rule of the criminal procedure law. The level of preliminary investigation is very low in Russian, and that is why many criminal cases go to pieces like houses of cards.

The grounds on which evidence is found invalid and is excluded from the case are as follows : violation of the defendant’s right to a defense, investigation conducted by a person who has no right to do so, violation of the rules for conducting the investigation and so on. The jurisprudence relating to exclusion of illegally gathered evidence has developed rapidly in the six years the institution has existed in Russia. At first such grounds as violation of the privilege against incrimination and the privilege of blood relatives by investigating bodies was common. Article 51 of the Constitution RF formalized a person’s right not to testify against himself/herself or against blood relatives and violation is grounds for exclusion. Some formal violations, such as the absence of a signature of the witnesses in the report written at the place of an official search or at the scene of the crime are not grounds for exclusion of the evidence now. The judges try to correct such gaps in the investigation by asking the persons referred to in the report to appear before the court. The current tendency is to exclude only evidence obtained in gross violation of the law.

The following rules apply in formulating a question list in jury trials in Russia : 1) the conclusions of the indictment that were not disproved in the course of the trial may be a source of questions; 2) questions concerning a new offense revealed in the course of the trial may be asked, but only if this crime is less severe than the crime the defendant is accused of in the indictment; 3) these questions are questions of fact, covering important characteristics of the corpus delicti, and their wording must be clear to the jurors (this provision is interpreted by the Plenary Session of the Supreme Court of the RF of December 20,1994 rather widely, prohibiting any use of legalese; 4) separate questions are asked concerning each unlawful action the defendant is accused of and with respect to each defendant, if there are more than one defendant; 5) there must be three main questions : whether it was proved that the crime had taken place; whether this crime had been committed by the defendant; whether the defendant is guilty of committing this crime; according to the law it is possible to ask only one question about the defendant’s guilt, but it must be a combination of the three questions mentioned above, though the Supreme Court of the RF prefers the asking of three separate questions; 6) it is possible to ask shorter questions about the circumstances diminishing the degree of the defendant’s guilt and providing grounds for pardoning him; 7) if the defendant pleads guilty, a question is asked whether the court should be lenient, or especially lenient to the defendant.

The procedure of returning the case for additional investigation is to the greatest extent inimical to the institution of jury trial. Instead of acquittal of a person because of unscrupulously collected evidence, the case may be returned to the same investigator. Moreover, petitioning to return the case after further investigation can be instituted both by the prosecution and the defense. An American advocate who observed the first jury trials in Russia, S. Thaman, asked his Russian colleagues the following question : Isn’t returning of the case of a reinvestigation like returning the lamb to the lion’s den ?” [7]

At the same time, the institution of returning a case for reinvestigation is closely connected with a lot of other provisions in our criminal procedure. For example, the absence of the advocate’s right to collect evidence. Having no possibility to collect evidence independently, the advocate in our criminal procedure sometimes has to petition to return the case for reinvestigation.

Appellate review of sentences in the form it exists in Russia also contradicts the essence of jury trial procedure. The mere word “verdict” (vere dictum) implies something unshakable. The judge must pass his/her sentence on the basis of the verdict. The parties cannot apply to the cassation instance concerning the essence of the verdict. But formally, the Cassation Chamber of the Supreme Court of the RF overturns the sentence passed by the judge on the basis of the verdict. In fact, the cassation instance oversteps the boundaries of the appeals and protests of the parties and reviews the case on its own initiative. Mistakes made not only in the course of trial but also in the course of the preliminary investigation may become a cause for overturning the decision made in a jury trial.

If trial by jury is considered as a system, we should state that its Russian variant is a mixture of elements contradicting each other. And the mechanism of this type cannot function reliability and harmoniously.

The latest event that has attracted public attention to jury trial was the decision of the Constitutional Court of February 2,1999. According to it capital punishment must not be applied until jury trial is introduced in all the 89 constituent entities of the Russian Federation. This is connected with the application of Article 20 of the Constitution of the RF. This Article formalizes the right of the accused, who may be punished by death, to be tried by a jury. I repeat that at present trial by jury exists only in 9 constituent entities.

The decisions of the Constitutional Court of the RF should be a kind of catalyst in the process of spreading jury trial all over the country. But the economic, social and political situation in Russia is in the way of the spreading of this process. Naturally, I am not empowered to express an official opinion on trial by jury. I just tried to share with you my own opinion based on the observation of the situation. And my opinion concerning the fate of jury trial in Russia is far from being optimistic.