On the Political Significance of Establishing a Full-Fledged Jury Trial System in Ukraine

The presidential campaign is slowly gaining momentum in Ukraine. With very few exceptions, virtually all the candidates are competing to see who is more pro-European and pro-Western. And in light of this, I have one suggestion for both the current and future presidents of Ukraine. The only thing cooler than visa-free travel—which we did manage to get (a victory)—and the construction of the bridge to Troieshchyna (a betrayal) might be… the establishment of a full-fledged jury trial system in Ukraine.

The jury system is the cornerstone of American justice, and I think I don’t need to prove to you that the U.S. is a model of the legal system of a modern democratic state. One can criticize the American electoral system or its foreign policy maneuvers, and even the actions of its security forces, which are under constant scrutiny by the international human rights community (see Guantanamo), but no one would dispute that the American judicial system serves as a model for the entire world.

So, there can be no democratic trial without a jury. At any rate, the U.S. is convinced that this is precisely the case. Moreover, serving on a jury is the duty of every American citizen. By comparison, the duty of every Soviet and post-Soviet citizen was to serve in the army. Even here, we can see a striking difference between what the Soviet Union wanted from its citizens (more cannon fodder!) and what the United States wanted (more responsible citizens!), but that is not the point here.

The Constitution of Ukraine (Articles 124, 127, etc.) provides for a jury trial. However, these constitutional provisions were not further developed in subsequent legislation. What we call a jury trial today (2 judges + 3 jurors sitting together—Art. 31, Part 3, and Art. 383, Part 3, of the Criminal Procedure Code of Ukraine) is, in fact, a model based on the German Geschworenengericht. Why is this not a jury trial? First, there is no diversity of opinions. It is generally accepted that a jury panel must consist of at least 6 people (the position of the U.S. Supreme Court); the classic model is 12 jurors, and an unusual one is 15 jurors (Scotland). Second, jurors cannot work alongside judges in the same panel, neither organizationally (discussing the trial in the same room) nor functionally (a professional judge must address procedural issues, while the jury panel must address questions of factual proof and guilt). If these two conditions are not met—the number of jurors and their independence from professional judges—then there can be no question of a jury trial. Only of some sort of surrogate model.

The specific Ukrainian challenges are also clear. Few people want to serve on a jury when other trials drag on for years. But this is not a problem with the jury trial as a model of judicial proceedings; rather, it stems from the shortcomings of criminal procedure law and the inefficiency of the judicial system.

There are currently two bills before the Verkhovna Rada of Ukraine that propose reforming the Ukrainian jury system. I will briefly discuss them.

The bill introduced by Prime Minister Volodymyr Groysman proposes that the right to request a jury trial be extended not only to those facing life imprisonment, but to anyone facing a potential sentence of eight years or more in prison. But what is most interesting is that the Cabinet’s document makes a tentative attempt to distinguish between the powers of jurors and professional judges; however, this distinction is not clearly defined, and, most importantly, it does not provide for separate deliberations by jurors and judges.

In contrast to the government’s bill, the bill proposed by People’s Deputy Serhiy Vlasenko (“Batkivshchyna”) lowers the sentencing threshold required for a jury trial to 10 years, but in return provides for the creation of a full panel of 12 jurors.

Thus, both bills attempt to address the fundamental issues raised above, but they are still rather rough around the edges, which is why they were criticized by the Verkhovna Rada’s Main Scientific and Expert Directorate and sent back for revision.

Incidentally, Vlasenko’s bill stipulates that regular jurors will receive the salary of a professional judge, while alternate jurors will receive a salary equal to their income at their last place of employment, which largely resolves the existing issue of low public interest in serving on juries. Moreover, this bill provides that, in cases where jurors are considering high-profile cases, their communication devices may be confiscated, and they themselves may be placed in a special secure location to prevent any pressure from being exerted on them.

These are important details; however, the Main Scientific and Expert Directorate of the Verkhovna Rada rightly notes that, given the ongoing judicial reform, courts are already facing a shortage of personnel, judges are overburdened, and in this situation, protracted trials involving jurors are unlikely to contribute to the resolution of cases within a reasonable timeframe. It is difficult to argue with this.

But the reform of the jury system must proceed in tandem with judicial reform itself, rather than being discussed on the sidelines.

But the main argument of those opposed to establishing a full-fledged jury system in Ukraine lies not at all in the legal realm. I would even call it an outright anti-Ukrainian thesis—and it goes like this: “Our people aren’t ready.” Well, that is to say, in Russia (which, as we know, is not Ukraine), people have been ready for over two decades (the jury system was introduced in the Russian Federation in 1994 and, incidentally, it’s practically the only judicial institution that actually works in Russia—there’s even a book by Russian lawyers titled *The Jury System: The Last Chance for Themis*, whose title speaks for itself). What’s more, since the summer of 2018, the scope of criminal cases handled by jury trials in Russia has expanded even further—juries now sit in district courts as well! But in Ukraine, you see, people aren’t ready. Meanwhile, Russia is confidently looking toward Asia and China—and expanding the jury system—while Ukraine is moving toward Europe and saying that “our people aren’t ready.” What a paradox and an absurdity!

At the same time, the Ukrainian jury system has even deeper historical roots than the Russian one. The jury courts in Kharkiv, Odesa, and Kyiv operated within the framework of the Russian imperial jury system, while in the western Ukrainian territories, jury courts—including Austro-Hungarian, Romanian, and Polish jury courts, as well as the jury courts of the West Ukrainian People’s Republic (ZUNR).

Yes, judicial reform involving the introduction of a full-fledged jury system is no simple matter; it will require considerable effort and resources. But at one time, military reform and the creation of a modern, combat-ready army also seemed like an insurmountable task. Yet life forced us to act, and it turned out that nothing is impossible! So, just as life compels us, the path of European integration chosen by the country inevitably requires us to establish a full-fledged jury system in Ukraine based on the best Western models. Establishing such a jury system would be a tremendous achievement for any president of Ukraine—old or new—and for any Verkhovna Rada—old or new—and this political decision would best cement Ukraine’s course toward European models of life.