Bohdan Futey writes:
Laws are needed to ensure this right is widely practiced.
With the adoption of its Constitution in 1996, Ukraine has attempted to make a transition in terms of the guarantees of individual rights, and its entire legal process, to a democratic system based on the rule of law.
As the systems of other democracies demonstrate, however, there is no one particular way to protect and enforce rights required for a democracy.
Further, Ukraine’s Constitution does not clearly delineate the method of guaranteeing certain rights and procedures, as many are dependent upon future statutes to outline the details.
In so doing, the Constitution has left several key issues open for debate, as these statutes are drafted. One such issue is the role of the jury in Ukraine.
The Constitution has guaranteed a right to trial by jury, but the procedures for a jury have not been defined by the Constitution or the Law on the Judiciary of 2001.
The recent Law on the Judiciary of 2010 is silent on the topic. This has led to an erosion of the Constitution’s guarantee.
Critics of President Viktor Yanukovych’s accuse his oligarch-backed administration of trampling on Ukraine’s constitution and basic human rights. The president adamantly denies such accusations. But despite his strong grip on power, Yanukovych and his team have so far failed to instill trust in the nation’s notoriously judicial system. Many believe introducing jury trials are one way to do this. (UNIAN)
Constitution of Ukraine
The Constitution’s jury guarantee contains elements of both the continental jury system, as well as the common law jury system.
This may be the result of compromise between various factions needed to ratify the Constitution, or the ambiguity may demonstrate an uncertainty as to the ultimate role of the jury in Ukraine’s legal system.
For example, Article 124 states that the people will participate in the administration of justice as people’s assessors and as jurors, but does not define those terms.
Similarly, Article 127 states that “justice is administered by professional judges and, in cases determined by law, people’s assessors and jurors.”
Neither article defines the terms “people’s assessors” or “jurors,” and it is unclear whether they are intended to mean different things or to be interchangeable.
The Constitution does distinguish jurors from judges, so the drafters may have envisioned jurors similar to those in the United States, who find facts and ultimately determine liability but make no other legal conclusions.
On the other hand, by qualifying judges as “professional judges,” the drafters may be implying that the jurors act as lay judges, as found in European systems.
A further indication of this meaning of the term “jurors” is found in Article 129, which states that “[j]udicial proceedings are conducted by a single judge, by a panel of judges, or by a court of the jury.”
Thus, the phrasing of this provision seems to allow for judicial proceedings to be administered by a “jury” without the guidance of a judge.
In this case, it is unlikely that the drafters intended a jury consisting only of laymen to preside over the case.
This provision would make sense only if the drafters defined the term “jury” as including at least one professional judge among several jurors.
Furthermore, it should be pointed out that Article 129 does not mention the participation of people’s assessors.
Specifics of jury composition
Regardless of the precise duties of the jury in Ukraine, the mere mention of the use of juries without further details raises other questions.
For example, the Constitution does not mention whether an individual has a right to a jury in civil and criminal cases, or only in criminal cases.
In the U.S., this concern was addressed by the Sixth Amendment to the Constitution, which guarantees the right to a jury in all criminal prosecutions, while the Seventh
Amendment preserves the right to a jury in lawsuits at common law “where the value in controversy shall exceed twenty dollars.”
Although $20 was worth much more in 1791, when the Seventh Amendment was ratified, the amount has never been increased.
It is also noteworthy that a professional judge is required to be a citizen of Ukraine (Art. 127), while the Constitution allows for “people” generally to participate in juries (Art. 124).
Nevertheless, jurors will probably be chosen from a pool of registered voters, who must be citizens of Ukraine.
This system is similar to the one followed in the U.S., since citizenship is a requirement for jury duty in federal proceedings under 28 U.S.C. § 1865.
Ukraine’s Constitution is silent as to the size of the jury and the number required to reach a decision.
While the U.S. Constitution does not mention an exact number of jurors, procedural rules and Supreme Court precedent have generally followed the common law practice of using twelve jurors in federal criminal proceedings.
See Williams v. United States, 399 U.S. 78 (1970); Fed. R. Crim. Pr. 23. Federal civil proceedings use between six and twelve jurors. Fed. R. Civ. Pr. 48. Whether civil or criminal, a verdict in federal trials must be unanimous.
These jury practices were drawn from the common law, but Ukraine does not have a well developed concept of the jury system.
This may cause additional uncertainty about the Constitution’s guarantees.
Necessity of further legislation
By leaving the details of jury systems to further statutes, the drafters of Ukraine’s Constitution have made the right to a jury susceptible to “clawback” provisions.
Thus, with one hand, the Constitution purports to ensure the participation of juries, but, with the other hand, statutes may severely reduce or effectively deny that protection.
By a simple majority, parliament could enact a statute that alters the right to a jury. This allows parliament to circumvent the two-thirds majority needed to amend the Constitution.
While Ukraine’s Constitution purports to guarantee some form of jury system, the Constitution raises certain issues that must be resolved through additional legislation.
One of the most basic questions that requires attention is the character of trial proceedings, and whether Ukraine will follow the jury trial system of continental Europe or of the U.S.
Trials in continental Europe, for example, follow the inquisitorial system, where judges play an active role during the proceedings.
In criminal trials, a judge will begin by reading the charges and perhaps even summarizing the evidence, and judges can call and question the witnesses in the case.
Trials in the U.S. proceed under the adversarial system, where the parties play an active role in presenting their case.
Under this system, the judge is much more passive, mainly responding to the parties’ objections and ruling on motions.
State criminal judges are prohibited from commenting on evidence, and federal judges generally refrain from such commentary as well.
The parties are responsible for calling witnesses, and judges usually avoid questioning these witnesses.
The reason that judges in the U.S. take a passive role in jury trials is to avoid unduly influencing the jurors, since an impartial jury is crucial to securing individuals’ rights and to limiting the authority of the government by allowing a defendant’s peers to decide his or her fate.
Ukraine should be mindful of how it enforces the Constitution’s jury guarantee.
If Ukraine combines an inquisitorial system with juries similar to those found in the U.S., there is a great risk that the judge’s active role in a case could hinder the jury’s impartiality, and thus interfere with the rights of the accused and with reliable fact-finding.
If Ukraine decides to use an adversarial system, the courts will need clear rules for the procedures and admission of evidence in order to secure the rights of defendants, the fairness of trials and the impartiality of juries.
The importance of the legislation that will enforce the Constitution’s guarantees thus cannot be overestimated.
Laws on judiciary
Even though these enforcement laws are of critical importance, they have so far been neglected. Under Article 127 of the Constitution, people’s assessors and jurors administer justice “in cases determined by law.”
The Law on the Judiciary of 2001 states that people’s assessors resolve cases in court proceedings “in cases determined by the procedural law” (Art. 65), and that juries are formed to review “disputes determined by the procedural law” in cases of the first instance (Art. 68).
The procedural codes enacted after 2001, however, did not provide for activities by juries or people’s assessors.
Thus, both the Constitution and the Law on the Judiciary of 2001 rely on further laws to actually enforce the guarantee to jury trials.
The Law on the Judiciary of 2010 fails to even mention or set up any procedures for trial by jury.
The Constitution of Ukraine guarantees its citizens a right to trial by jury, but the Constitution requires further laws to flesh out and enforce this right to a jury trial.
Since the enactment of the Constitution, parliament has not implemented this right.
Even the most recent Law on the Judiciary, in 2010, failed to do so.
This year marks the fifteenth anniversary of the adoption of Ukraine’s Constitution. Unfortunately, nothing has been done to implement juries in Ukrainian courts. Unless the legislature acts, this fundamental right will continue to erode.
Bohdan A. Futey is a judge on the United States Court of Federal Claims in Washington, D.C., appointed by President Ronald Reagan in May 1987.
Judge Futey has been active in various rule of law and democratization programs in Ukraine since 1991.
He has participated in judicial exchange programs, seminars, and workshops and has been a consultant to the working group on Ukraine’s Constitution and Ukrainian parliament.
He also served as an official observer during the parliamentary elections in 1994, 1998, 2002 and 2006, and presidential elections in 1994, 1999, 2004, and 2010, and conducted briefings on Ukraine’s election Law and guidelines for international observers.
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