People can't judge

Valery Zorkin explains why jurors were again restricted in their rights

On Monday, the Constitutional Court issued the following decision: a ban on trial by jury of criminal cases under a number of articles of the Criminal Code, including charges of terrorism, hostage-taking, rebellion, espionage and other serious crimes...

On Monday, the Constitutional Court issued the following decision: the ban on trial by jury of criminal cases under a number of articles of the Criminal Code - including charges of terrorism, hostage-taking, rebellion, espionage and other serious crimes - does not contradict the Constitution and does not violate the rights of citizens to judicial protection. .

Until December 2008, the Code of Criminal Procedure was in force, according to which those accused of grave and especially grave crimes could choose who would consider their case: a judge and a panel of twelve jurors or a troika of judges. But then the Law “On Amendments to Certain Legislative Acts of the Russian Federation on Countering Terrorism” was adopted, and, in particular, changes were made to Article 30 of the Code of Criminal Procedure.

Now criminal cases on crimes under articles 205 (terrorist attack), 206 (hostage-taking), 208 (organization and participation in an illegal armed formation), 212 (organization of riots, accompanied by violence or armed resistance to government officials), 275 (high treason), 276 (espionage), 278 (forcible seizure or retention of power), 279 (armed rebellion) and 281 (sabotage) do not fall under the jurisdiction of a jury: three professional judges must consider them. It should be noted that in the explanatory note to the 2008 draft law, its authors stated that “in the southern regions of Russia, the facts of acquittals or guilty verdicts with an indication of leniency towards the defendants have become more frequent in the southern regions of Russia.” And they cited data: in Dagestan and Kabardino-Balkaria, out of 26 verdicts on terrorism cases, 12 were acquittals. In turn, human rights activists - Lyudmila Alekseeva, Svetlana Gannushkina and others - feared that the adoption of the law would give a signal for judicial reprisals against participants in mass protests and lead to the fabrication of new "spy trials". At the same time, as practice shows, unlike jurors, professional judges in such cases most often take the side of the prosecution, making decisions in the interests of the authorities ...

Five citizens turned to the Constitutional Court and were accused of various “terrorist” articles: in the attack of militants on Nalchik in 2005, in the preparation of terrorist attacks in Bashkiria, and in participation in the Islamist organization Hizb-ut-Tahrir. They said that depriving them of the right to trial by jury, enshrined in the Constitution, violates the principle of equality of citizens before the law and restricts their rights - since the trial by jury "to a greater extent than other forms of legal proceedings, guarantees against judicial errors."

The COP, however, did not agree with their logic. Yes, the court ruling says, the Constitution guarantees the right to trial by jury, but only when (Article 20) the defendant faces the death penalty. All other cases in which the defendant is entitled to a trial by jury under Section 47 of the Constitution must be provided for in federal law. What has been done: the legislator has decided which cases give the right to trial by jury, and which do not. For, according to the Constitution and international norms, “the right to trial by jury is not among the fundamental rights, inalienable and belonging to everyone from birth, such as the right to an independent and impartial trial or the presumption of innocence.”

As regards the merits of the applicants' cases, the CC noted that the crimes with which they were accused could previously have been subject to the death penalty, but for many years there has been a comprehensive moratorium on the use of the death penalty, this type of punishment cannot be applied, and there is irreversible process aimed at its final abolition. “A constitutional and legal regime has developed in the Russian Federation, in which there are stable guarantees for citizens not to be subjected to the death penalty,” said Valery Zorkin, Chairman of the Constitutional Court.

In such circumstances, the Constitutional Court believes, the legislator "has the right to remove the named elements of crimes from the jurisdiction of the jury, if this is necessary to protect the rights and legitimate interests of citizens." Which in this case, according to the Constitutional Court, is the case, because the consideration of "terrorist" cases threatens the life and health of the jury, and this cannot but affect their impartiality and independence. In addition, the Constitutional Court believes that the opinion of the jury in such cases, which are widely publicized, can be pre-formed by reports from “non-procedural sources” (for example, from the media). If so, in order to ensure the impartiality of the court, the legislators had the right to transfer the consideration of “terrorist” cases only to professional judges.

“This is not a campaign against democracy. This is a campaign in defense of democracy, in order to protect both the population and the judges themselves from intimidation with modern judicial means,” Zorkin said. But where are the guarantees that the objectivity and impartiality of professional judges will be higher than that of jurors "of the people"? Can't they be pressured? Won't they fear for their lives? To this, Valery Zorkin replies that "a professional judge is a specially trained person in whom these feelings atrophy."

Of course, as human rights activists and independent experts note, many jury acquittals are not the result of pressure on them, but the result of the investigation’s lack of professionalism, to which the jury turns a blind eye much less often than professional judges. And if one can agree with the fact that the consideration of cases of terrorist attacks or sabotage should be the lot of professionals, then why can't jurors consider cases of espionage, treason or riots? Where nothing threatens their lives and where no one intimidates them? However, this should be asked not from the Constitutional Court, but from legislators and the authors of the Constitution, which does not give an “absolute” right to trial by jury.