Juries on Trial

On January 11, 2002, a group of Russian servicemen led by Captain Eduard Ulman was searching a region in Chechnya for the notorious separatist warlord Khattab.

The military patrol was approached by a truck that failed to obey an order to stop. The patrol opened fire on the truck.

No arms were found in the truck, which contained just six civilians from a nearby village, one of whom was killed and two whom were wounded when the soldiers opened fire.

Ulman contacted his military superiors by radio and alleges that he received an indirectly-phrased, but clear order from his superiors to kill all survivors in the truck and cover up traces of the attack. The order was fulfilled.

The men piled the villagers’ dead bodies into the truck, set it on fire and pushed it into a ravine. It was later found by locals and a military investigation began.

Sixteen months after the killings, a jury acquitted Ulman and his subordinates.

One hundred and forty years ago, on November 20, 1864, Russia first introduced jury trials. It was part of a sweeping reform of the country’s decrepit legal system, instigated by Alexander II through his new Judicial Charters.

Alexander’s package of reforms not only introduced trial by jury, but also the Institute of the Bar – lawyers absolutely independent from the state, who were not state officials. The office of Justice of the Peace was also introduced.

“Separation of courts from state administration was not just proclaimed – it was made real,” said Alexander Krushelnitsky, historian and assistant professor at the Russian State University for Humanities in Moscow. “By introducing the direct election of Justices of the Peace, by transferring the investigative apparatus to the jurisdiction of the courts, by proclaiming individuals’ equality before court – this principle was observed in actual fact.”

Yet, less than a decade later, jury trials were largely emasculated, Krushelnitsky said. “The State, having initiated the introduction of jury courts, soon saw that it was difficult to live with such courts,” he said. “This is because the mechanism of the Russian Empire was one of a Police State, while the gears of the judiciary turned in a completely different way. So they started breaking the teeth off this cog, until it had been turned into an insignificant knick-knack, a mere decoration on the body of a police state.”

From the very beginning, juries did not have jurisdiction over crimes against the State. These were overseen by a Special Convocation of the Governing Senate. And jurors were selected in keeping with the standards of that era: by age, sex (a woman could not sit on the jury), religion and ethnicity (Catholics, Protestants, not to mention Jews, need not apply), property ownership (de rigeur), and social status (priests and military men could not serve).

Although at first the number of jury acquittals was strikingly high, the courts were not necessarily liberal. Jurors were especially severe towards crimes against private property and sacrilege. For instance, a horse thief, especially a recidivist, had no chance of acquittal. Yet jurors understood, and even occasionally pardoned a first offence of theft committed by a man in great need.

Interestingly, where a crime against the State was concerned, the jury could be quite indulgent. Someone who, say, violated the passport regime or who struck a policeman while being arrested usually earned the sympathy of the jury. This was a reflection of the reigning public sentiment: Russians have traditionally scorned the police, and bestowed on it a horrible reputation.

It was against this backdrop that one of the most famous jury trials of the 19th century was held, a trial which was the beginning of the end of jury courts in Tsarist Russia.

On January 24, 1878, the radical activist Vera Zasulich shot and wounded the Governor General of St. Petersburg, Dmitry Trepov. Allegedly, she committed the act in revenge for Trepov’s ordering the flogging of a political prisoner, who subsequently went insane.

Zasulich was arrested at the scene. There were plenty of eyewitnesses and Zasulich did not deny the charges against her. Nonetheless, the State was faced with a dilemma: was the crime an act of political terrorism – the attempted murder of a state official, or was it simply an attempted murder? If the crime was classified as a political act, the case would be tried by a Special Convocation of the Governing Senate, and Zasulich would have been almost automatically handed a sentence of prison or hard labor. If the case were classified as a criminal matter, however, it would be heard in a circuit court, deliberated by a jury.

The State did not want to classify the case as political, as it had just concluded the scandalous “Case of the 193,” in which severe sentences were handed down against Populists (Narodniki) for inciting peasants to riot against the regime. The public was indignant about the severe sentences in this case, and it was decided to assign Zasulich’s case to a jury court.

The State was caught in its own trap. Talented and verbose lawyers, supported by Petersburg public opinion, easily defeated the inarticulate prosecutors, who had no experience speaking in public. The case became not about attempted murder, but injustice. On March 31, 1878, the court acquitted Zasulich and her confederates spirited her away so that she could not be arrested and retried.

The Powers That Be were shocked: how could a person who shot the governor general in broad daylight be acquitted and released?

The acquittal and subsequent government crackdown encouraged more terrorist acts. Three days later, Alexander II called in his Council of Ministers to discuss the situation. Count Palen suggested that the government needed courts which would act on the State’s orders. The reactionary chief procurator of the Holy Synod, Konstantin Pobedonostsev, went even further: he suggested abolishing jury courts altogether, as “absolutely redundant, completely incompatible with the conditions of our way of life.”

Although, formally, jury courts remained, the state adopted Palen’s theory. Independent courts were de facto abandoned. Their jurisdiction no longer extended to any case that was even remotely political. Then, after the assassination of Alexander II in 1881, all political cases were assigned to military courts, whose activity reached their peak in 1904-1907. As for Justices of the Peace and juries, they now oversaw only purely civil and criminal cases. Thus, by 1917 Russia had no developed traditions of an independent court system.

The Soviet InteRregnum

Needless to say, there were no jury trials during the Soviet era. What remained of the tsarist jury trial system was abolished by the Bolsheviks as a bourgeois institution. Summary justice and execution were rampant in the years of the Civil War and the Purges. Stalin’s infamous 1938 Constitution – released at the height of the murderous Purges – promised a due process that was never reflected in reality. Guilty as charged was the reality, not innocent until proven guilty.

Throughout the Soviet era, the courts were, as Count Palen had suggested, at the beckon call of the State. As the noted court observer Yuri Feofanov wrote, “Soviet courts were never neutral arbiters... they followed a ‘revolutionary’ tradition and then ‘socialist’ legality, which proceeded from class objectives rather than legal principles... once a case was initiated, a charge was necessary. If a person was arrested, then a prison sentence was expected. Accusations were simply translated into sentences, regardless of what the court proceedings demonstrated.”

While legal reforms in the post-Stalin era blunted some of the worst excesses of the judiciary, there was still no adversarial trial system, no independence of the bar from the State. The singular nod toward civic participation in the justice system was the system of three-judge panels for handling certain criminal and civil cases. These were made up of two citizens and one judge, with each of the three having one vote to decide the defendants’ fate. But the reality was that, in most cases, the citizens deferred to the judge. By the early 1980s, only 0.1 percent of defendants were ever acquitted of the crimes of which they were accused.

Back to 1864

On July 16, 1993, Russia passed a bill that introduced jury trials. The first regions to experiment with juries – in November 1993 – were Saratov, Ryazan, Ivanovo, Moscow and Stavropol. In January 1994, they were joined by Rostov, Ulyanovsk, Altay and Krasnodar. The first post-Soviet jury trial took place on December 15, 1993, in a Saratov regional court.

By the mid-1990s the Russian Constitutional Court was swamped with requests from Russians who resided outside these regions, demanding that the court comply with Article 20 of the Russian Constitution. This article stipulates that trial by jury must be possible for crimes subject to the death penalty. In February 1999, the Constitutional Court ordered the Federal Assembly to amend current law on jury trials to comply with Article 20.

Beginning July 1, 2003, as part of a broad judicial reform, jury trials became universal and were allowed in not just criminal or economic cases, but also political trials – including cases relating to terrorism, military crimes and espionage.

The relevant Russian law states that jury candidates must “be citizens of the Russian Federation, included in the lists of jurors, summoned in the order determined by law to participate in the court trial.” Jurors must be on voter lists (which are only drawn up prior to national elections), be at least 25 years old at the time the lists were drawn up, and may not have been convicted of a crime or be deemed by the court physically incapable of functioning in the capacity of a juror.

According to the historian Krushelnitsky, the current system gives wide latitude to judges to determine who can or cannot serve on a jury. “The law does not state explicitly who should not serve or who does not have the right to serve on a jury,” he said. “For instance, in imperial Russia, military personnel could not serve on a jury panel. And now it is like this: officials of executive branches of power (that includes judges, prosecutors and notaries), staff of the Interior Ministry, security services and military personnel all have a right to refuse nomination to a jury panel. But they can also not refuse it. The judge can reject their refusal... But it is absolutely obvious that a police or Federal Security Services officer cannot be independent – he is practically 100 percent controllable.”

Russian law states that a judge can remove any juror “whose objectivity raises well-founded doubts because of: illegal influence that may have been exerted on a person, a person having a biased opinion, a person’s knowledge of the circumstances of the case from non-procedural sources, as well as for other reasons.”

“Just this one article is a powerful weapon in the judge’s hand,” Krushelnitsky noted. “He can reject any juror without providing an explanation. And, since the verdict depends on juror selection, the judge can determine the verdict simply through the staffing of the jury panel. And who is the judge? A federal official! Therefore, with the introduction of jury trials, we get something that is correct in form, but a travesty in substance. Because a person’s fate ends up in the hands of one man – a federal judge, a state bureaucrat.”

Natalya Yevlapova, lawyer for the Zarema Muzhakhoyeva, a would-be Chechen suicide bomber, agrees. “Today it is unclear who puts together the initial list of jury candidates and how it is done,” Yevlapova said in an interview with Izvestiya this spring. “This situation is not transparent and can therefore raise doubts. At present, a judge, after all challenges, takes the first 12 people on the list and theoretically there is a possibility to influence the composition of the panel by putting the desired people at the top of the list.”

Many lawyers who have defended their clients in jury trials say judges also have unlimited freedom in drafting the list of questions or charges which the jury will rule on, thus potentially influencing the outcome. “Today it is possible for the judge to phrase the questions the way he thinks appropriate,” Yevlapova said. “The defense can voice its objections, but as my experience during [Muzhakhoyeva’s] trial showed, the court can ignore [those objections]. When I saw the questions list, my hair stood on end.”

Boris Kuznetsov, lawyer for the scientist Igor Sutyagin, who was convicted of espionage in 2004, said the same was true in the case of Sutyagin’s trial: “The questions the judge put before the jury were obscene. The judge decided whether a state secret had been disclosed or not. The jurors merely answered questions about things that Sutyagin himself did not conceal.”

Stanislav Markelov, a lawyer for the plaintiff in the case of Colonel Budanov (convicted for murdering a young Chechen woman, Elza Kungayeva), and for several victims of the Nord-Ost hostage standoff, said professional lawyers have mixed feelings toward jury trials. The biggest advantage, he said, is that a defendant has much better chances of acquittal before a jury. “It is great that, with the introduction of juries, the parties in court have someone to remonstrate for,” Markelov said. “Because it is no secret that, in 95 percent of cases, our judges begin with their minds made up, and that the whole meaning of our legal proceedings is reduced to the announcement of a verdict… Only the jury gives the accused at least some chance. If only because they are not state bureaucrats and are not part of the stick-and-report system [they do not have to report on the opening and closing of the case].”

In the first six months of 2004, 18 percent of defendants requested that their case be tried before a jury, compared to 14 percent in 2003. In some regions, the number is much higher: it is 82 percent in Leningrad Region, 70 percent in Ivanovo region, and 62 percent in Kalmykia, Nezavisimaya Gazeta reported in August, citing Russian Supreme Court Judge Aleksei Shurygin.

Statistics on conviction and acquittal rates in jury vs. non-jury trials differ depending on source, but, on average, juries are said to hand down about ten times more acquittals than non-jury trials. But this may not be saying much: the acquittal rate in non-jury trials is estimated at less than one percent. Indeed, a respected website run by defense lawyers, arestant.msk.ru, puts the acquittal rate in Moscow non-jury trials at 0.3 percent. In July, Vremya Novostey newspaper reported that, a year after jury trials had been introduced in Moscow, the number of acquittals rose about ten-fold, to about 20 percent.

In an interview with Yezhenedelny Zhurnal, well-known Russian lawyer Henry Reznik gave a rather upbeat assessment of jury trials. He dismissed doubts about the jury’s vulnerability. “How can you put pressure on 12 people? Bribe them? Scare them? Go visit them in their apartments, or what? Jury courts, unlike the common courts, unlike professional judges, are not corrupt,” he said.

However, many lawyers have strong doubts about the jury’s independence. Markelov said the current system fails to provide any protection for jurors. “They are defenseless – there is no tool for defending jurors either from the State or from the criminal world. So it is not surprising that juries in the Russian provinces are now acquitting gangsters in hordes. Jurors live in the same town with these gangsters and understand everything only too well: nothing can protect them from the revenge of their confederates.”

While experts may argue about the pluses and minuses of the new judicial system, it is in place and its wheels are turning after a century’s hiatus. And, as it turns out, jury trials were responsible for deciding some of the most notorious trials of the last year.

Case Studies

One of the first significant jury trials in Russia received little public attention. In November 2003, a trial was held behind closed doors to prosecute those allegedly behind the August 2001 explosion in an Astrakhan market. Contrary to the prosecution’s expectation, the jury acquitted all four of the accused. Security services had attributed the explosion to Chechen terrorism, while another version had it that the explosion was due to a fight for control of the market between the local gangs.

The jury trial of Krasnoyarsk scientist Valentin Danilov also dealt a blow to security services’ credibility. In 2000, Danilov, a well-known specialist in the physics of cosmic plasma, was accused by the FSB of divulging a state secret and later of treason. Krasnoyarsk State Technological University, where Danilov worked, had signed a contract with the Institute of Physics of the Chinese Aerospace Corporation. According to the contract, the Krasnoyarsk side was to produce and deliver a simulator – based on an invention of Danilov’s – modeling the impact of the space environment on satellites, and to develop related software. This was not a private contract between Danilov and the Chinese Institute, but between the two academic institutions.

Danilov spent February 2001 to September 2002 in custody. The outcome of the trial was sensational: on December 30, 2003, the jury issued a not guilty verdict. However, on June 9, 2004 the Russian Supreme Court overturned the acquittal, saying that pressure had been placed on the jury.

On September 20, 2004, a new jury began hearing Danilov’s case. The trial is being carried out behind closed doors and the judge has reportedly banned Danilov from speaking to the press, so as not to influence jurors.

After Danilov’s case, Federal Security Service (FSB) officials started suggesting that jury courts might be incompatible with cases of espionage. As Valery Zazhitsky, professor of criminal law and criminal trial at the FSB Academy said in an interview with Yezhenedelny Zhurnal, “jurors, who are selected off the street, by definition cannot understand the subtleties of these court proceedings. They also cannot guarantee non-disclosure of state secrets. There arises a serious danger that state secrets will become known to others and will be used to damage Russia’s defense capacity and security.”

In the next important espionage case, Igor Sutyagin, a scholar with the Institute of the USA and Canada, was arrested in October 1999 in Obninsk on charges of treason. Sutyagin was accused of passing secret information about Russian armed forces to foreign intelligence services.

Defense and human rights activists decried the arrest, saying that Sutyagin had never had security clearance and thus could not possibly have passed state secrets to anyone. Sutyagin wrote reviews on military matters for a British consulting firm, but these were based solely on open sources and contained no secrets, the defense argued. In fact, the prosecution’s accusations were found to be so ungrounded that the Kaluga District Court, where the case was first heard, ruled that the State had failed to prove all charges.

As a result, the case was forwarded from Kaluga to Moscow for additional investigation, in the process of which 33 of the 38 charges were dropped. When faced with a choice which type of trial to choose, by judge or by jury, Sutyagin chose a jury, thinking that in a common court the defense had no chance of success.

Originally, the trial judge was to be Pyotr Shtunder, who left on vacation and somehow did not return to try the case. He was replaced by Marina Komarova, a judge who had before chaired several political, closed-doors trials, including those convicting diplomat Valentin Moiseyev, ex-KGB general Oleg Kalugin, and those regarding apartment bombings in Moscow and Volgodonsk. In this case, Komarova dissolved the already impaneled jury, then replaced it with a new one, which unanimously found Sutyagin guilty. On April 5, 2004, Sutyagin was given a 15-year prison sentence.

Human rights activist Ernst Chyorny, in a recent article in Novoye Vremya magazine, analyzed the jury panel which convicted Sutyagin. He concluded that the panel had too many people of high social status: two company directors, the deputy head of a representative office for a foreign company, a deputy chief constructor, a translator, a human resources inspector, a head flight engineer, and a train supervisor. Only 5 of the 14 jurors could be called ordinary citizens, Chyorny wrote. “Therefore, there was no random selection. Had there been a random selection, the majority of the jurors would have been common citizens. And here is where the main secret of today’s jury courts is concealed: the defense and the accused do not participate in the initial [juror] selection. That means, at this stage, people that the prosecution needs, not random persons, can be simply selected.”

On the same day Sutyagin was sentenced to prison, a jury convicted Zarema Muzhakhoyeva, who was then sentenced by the judge in the case to a 20-year prison term. Muzhakhoyeva was arrested on July 9, 2003, near the “Imbir” restaurant on Moscow’s Tverskaya street, after she told the guard she had a bomb. Later, an FSB explosives technician died as he tried to diffuse the bomb.

Muzhakhoyeva reportedly collaborated with the court and police on the promise of a milder sentence. But the jury’s decision and the judge’s severe verdict surprised many, including, reportedly, the FSB.

In another jury trial, on April 29, 2004, a Rostov-on-Don panel acquitted the defendants in the “Ulman case” – summarized in the introduction to this article.

Neither Ulman nor his subordinates denied the charges against them, confessing at the very beginning of the investigation. Ballistic analysis also proved their involvement. Yet, Ulman’s superiors, who he alleged had given him orders to kill the civilians, refused to confirm his version of the events, saying Ulman had acted on his own initiative. Ulman, in turn, appealed to the evidence given by his subordinates, who had also heard the orders given him by his superiors. Interestingly, no one seemed to deny that unarmed civilians had been murdered.

But the jury took the side of the murderers. While it agreed that murders had been committed, they accepted the defense’s arguments that Ulman and his men “were just following orders” and pronounced the men innocent.

Logically, therefore, those who issued the orders to Ulman should have taken Ulman’s place in the defendant’s chair, but the cruel trick was that the military leadership denied ever having giving such orders and there was no way of proving the contrary.

Lawyer Stanislav Markelov argues that Chechenophobia, heated up by terrorism and the endless conflict in Chechnya, could be one reason the confessed murderers were not brought to justice. “Trials of army servicemen who commit crimes in Chechnya are held in regions where the population openly hates Chechens,” Markelov said. “And the predetermination of the jury’s verdict is obvious: they will justify any crime committed by the military; there is a war going on and those at war do warlike things.”

Interestingly, in August 2004, the Russian Supreme Court overruled the Rostov-on-Don’s jury’s acquittal and sent the case to the North Caucasus Military Court for retrial by a new jury. The Supreme Court was responding to an appeal filed by the families of the six victims. The court upheld the appeal on technical grounds: the jury had been selected from the 2003, not 2004, voter lists, which is illegal. There had also been some violations in the composition of the jury that decided the case.

In an echo (or perhaps an omen) of the Ulman Case, on June 29, 2004, a jury in the Northern Caucasus District Military Court acquitted two Interior Ministry officers – First Lt. Yevgeny Khudyakov and Lt. Arakcheyev – for shooting three Chechen construction workers on January 15, 2003. In this case, however, the verdict was not a surprise. It was widely seen as part of a general tendency to acquit servicemen for crimes committed against Chechens. The prosecution presented little evidence of the defendants’ guilt.

Now what?

“The first jury trials,” Markelov said, “have proved that judges are very good at manipulating the panel. The judge has plenty of tools to do this: he can limit the speech of a lawyer who is disagreeable to him, and can conduct the session in such a way as to bring the jury to the result which he [the judge] needs. The outcome of such a trial is as predictable as the outcome of trials in Soviet times.”

Other experts note that jury trials are but one element in establishing a truly fair judicial system in Russia. Not only the jury, but also the judges, the prosecution and the lawyers must be truly independent of the State and any interested parties. “It is impossible to speak of jury courts separately from the institute of the bar,” Krushelnitsky said. “Today the bar is formed from the Soviet bar, where every second or third person is a former Brezhnev-era prosecutor or criminal investigator. And even Soviet defense lawyers were just there to aid the prosecution.”

Some experts simply doubt that the Russian jury system is mature enough to take on the task set before it. “Any decision taken collectively decreases individual responsibility,” former Russian Prosecutor General Yuri Skuratov said in an interview with Sobesednik magazine. “Thus, leaders emerge who largely determine everyone’s mood and can influence the panel’s verdict as they wish.” Skuratov suggested trimming juries to 5-7 persons and including two professional lawyers as consultants to the panels.

Yet lawyers who have defended their clients in front of a jury do not share Skuratov’s pessimism. Lawyer Boris Kuznetsov, whose company defended Igor Sutyagin, said that, although in Sutyagin’s trial “the judge manipulated the jury,” he still said he feels that trial by jury is the best existing option.

“A jury is maybe not the best form of trial,” Kuznetsov said, “but no one has yet invented anything better. And I do not think there is any need to amend current laws. We should just observe the laws that exist. And we should not try to discredit the jury, put pressure on them, or manipulate their opinion. On the whole, jury trials humanize the entire judicial system. They make judges, who only consider cases, look back at how similar cases are viewed by juries.”

Lawyer Natalya Yevlapova, said she has not turned against jury trials, despite what she feels was an unfair verdict handed her client. “A single verdict and the system are two different things,” she said. “I think jury trials should be developed, experience should be accumulated. The system will start working at full capacity in a couple of years, when a baggage of such ‘defective’ verdicts has been accumulated, when people selected to serve on a jury panel will have a more serious attitude toward their task, when lawyers and prosecutors and judges have acquired more experience.”

That, it seems, is the crux of the matter. Some of the bolts and screws seem to be in place in the new Russian judicial machine, but few Russians understand how they work. Fewer still believe they are governed by the rule of law, and not the rule of bureaucrats.

Jury trials, for their part, risk becoming marginalized because of some of the normal errors attributable to human nature and an immature legal system. On the other hand, there is also the risk that the availability of trial by jury could become a panacea – a smokescreen to cover up a judicial system that is in need of much broader, deeper reform, from training lawyers and judges to simply inculcating that most basic of legal premises for a democratic society: innocent until proven guilty.  RL